Family Assistance Legislation Amendment (Child Care Subsidy) Bill 2021 [2021] AUSStaCSBSD 145 (13 July 2021)

• Family Assistance Legislation Amendment (Child Care Subsidy) Bill 2021
• Power for delegated legislation to modify primary legislation (akin to Henry VIII clause)4

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Family Assistance Legislation Amendment (Child Care Subsidy) Bill 2021

Purpose	This bill seeks to give effect to a key measure impacting the rate of child care subsidy (CCS) that Australian families are entitled to receive
Portfolio	Education, Skills and Employment
Introduced	House of Representatives on 24 June 2021

Power for delegated legislation to modify primary legislation (akin to Henry VIII clause)^[4]

1.9 Item 10 of Schedule 2 to the bill seeks to amend paragraph 67CC(2)(b) of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act). Paragraph 67CC(2) currently provides that the Secretary may determine that an individual is no longer eligible for the child care subsidy by fee reduction if the Secretary has made determinations under subsection 67CD(8) for 52 consecutive weeks. The amendment to paragraph 67CC(2)(b) seeks to provide that the Minister's rules may prescribe a different number of consecutive weeks for this purpose.

1.10 Item 11 of Schedule 2 to the bill seeks to insert new paragraph 67CC(2)(d) into the Administration Act to provide that an individual is no longer eligible for the child care subsidy by fee reduction if no sessions of care, as evidenced by reports made under section 204B of the Administration Act, have been provided for the child for at least 26 consecutive weeks. Proposed subparagraph 67CC(2)(d)(ii) provides that the Minister's rules may prescribe a different number of weeks for this purpose.

1.11 Item 13 of Schedule 2 to the bill seeks to amend Schedule 2 to the A New Tax System (Family Assistance) Act 1999 to insert proposed paragraph 3B(1)(d) to provide that that sessions of care must have been provided to the ‘other child’ (i.e. another older child who satisfies the conditions in subclause 3B(2) or (3)), as evidenced by reports under section 204B of the Administration Act, in relation to at least one week in a period of 14 weeks ending at the end of the child care subsidy fortnight. Proposed subparagraph 3B(1)(d)(ii) provides that the Minister's rules may prescribe a different number of weeks for this purpose.

1.12 Provisions enabling delegated legislation to modify the operation of primary legislation are akin to Henry VIII clauses, which authorise delegated legislation to make substantive amendments to primary legislation. The committee has significant scrutiny concerns with Henry VIII-type clauses, as such clauses impact on the level of parliamentary scrutiny and may subvert the appropriate relationship between the Parliament and the executive, impacting upon Parliament's constitutional role as lawmaker-in-chief. Consequently, the committee expects a sound justification to be included in the explanatory memorandum for the use of any clauses that allow delegated legislation to modify the operation of primary legislation. In relation to proposed new paragraph 67CC(2)(d), the explanatory memorandum states:

The ability to change the period of weeks under new paragraph 67CC(2)(d) is required to ensure any emerging issues following commencement of Schedule 2, Part 1, can be addressed. The appropriateness of the 26 week period will be considered as part of ongoing monitoring and compliance work for the measure.^[5]

1.13 While noting this explanation, the committee does not consider that this is a sufficient justification for allowing delegated legislation to alter the operation of the primary legislation. It is unclear to the committee why any proposed changes required following ongoing monitoring or compliance work could not be made in amendments to the primary legislation.

1.14 In light of the above, the committee requests the minister's more detailed advice as to why it is considered necessary and appropriate to allow the Minister's rules to prescribe different numbers of weeks in relation to proposed paragraphs 67CC(2)(b) and 67CC(2)(d) of the A New Tax System (Family Assistance) (Administration) Act 1999 and proposed paragraph 3B(1)(d) of the A New Tax System (Family Assistance) Act 1999.

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[4] Schedule 2, items 10, 11 and 13, proposed paragraphs 67CC(2)(b), 67CC(2)(d) and 3B(1)(d). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[5] Explanatory memorandum, p. 14.