Family Assistance Legislation Amendment (Child Care Subsidy) Bill 2021 [2021] AUSStaCSBSD 164 (4 August 2021)

• Family Assistance Legislation Amendment (Child Care Subsidy) Bill 2021
• Power for delegated legislation to modify primary legislation (akin to Henry VIII clause)7

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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/Sponsor	Education, Skills and Employment
Introduced	House of Representatives on 24 June 2021
Bill status	Before the House of Representatives

Power for delegated legislation to modify primary legislation (akin to Henry VIII clause)^[7]

2.17 In Scrutiny Digest 10 of 2021 the committee requested 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. ^[8]

Minister's response^[9]

2.18 The minister advised:

Items 11 and 13
Item 11 provides additional circumstances when the Secretary may make a cessation of eligibility determination. This includes where no sessions of care have been provided to the child for at least 26 consecutive weeks, or a different number of consecutive weeks as prescribed by Minister's Rules. The purpose of this amendment is to address the risk that a parent makes a claim for CCS for their eldest child aged five years or under, with no intention of that child ever using child care, in order to receive a higher rate of subsidy for any younger children.
Item 13 requires that in order for a child to receive a higher rate of subsidy, at least one session of care has to have been provided to the 'other child' (that is, an eldest child aged five years or under), in at least one week out of the past 14 weeks, or a different number of weeks as prescribed by Minister's rules. This item is intended to supplement the amendment at item 11 and provide an additional safeguard for the measure.
Including the ability to be able to change the time periods set out in item 11 and 13 is critical to ensure policy integrity is maintained. The intent of the Bill is to provide increased support to families who actively use child care for multiple children aged five years and under. Following implementation, the Department of Education, Skills and Employment and Services Australia will monitor the number of individuals who receive CCS eligibility determinations for their eldest child aged five years and under, but do not enrol or use care for this child. This will allow the Department to identify where the MCS is being paid to families who are not actively using child care for their multiple children, and respond to this through potential changes to the time periods in items 11 and 13. This is appropriate to ensure the Australian Government's investment is spent in line with policy intent.
The ability to change the time periods through Minister's rules will also allow the Government to quickly respond if it becomes evident the provisions are negatively impacting families who are genuinely accessing child care. A contemporary example of when these timeframes may require expeditious adjustment is where, because of an extended COVID-19 related lockdown, or a period of local emergency, no sessions of care have been provided to children enrolled at a service for more than 14 weeks. In such circumstances, it would be essential for the Government to be able to immediately extend the 14 week period via Minister's Rules, to ensure families and child care providers are not adversely affected.
Item 10
Item 10 amends an existing provision in A New Tax System (Family Assistance) (Administration) Act 1999, which allows the Secretary to make a cessation of eligibility determination if the individual has not been entitled to be paid CCS for at least 52 weeks. The item will allow the Minister to prescribe a different number of weeks in Minister's rules.
As this provision also affects CCS eligibility, it is appropriate that this period should also be amended by Minister's rules. This will enable the appropriateness of the period to be considered alongside any changes to the time periods in items 11 and 13 of Schedule 2 of the Bill. Looking at these three time periods together will ensure that the cumulative impact on families of the three provisions can be considered and that there is policy consistency around CCS eligibility determinations.

Committee comment

2.19 The committee thanks the minister for this response. The committee notes the minister's advice that including the ability to be able to change the time periods set out in items 11 and 13 is critical to ensure policy integrity of the Child Care Subsidy scheme is maintained. The committee also notes that minister's advice that this will allow the department to identify where the Multi Child Subsidy is being paid to families who are not actively using child care for their multiple children, and respond to this through potential changes to the time periods in items 11 and 13. The minister also advised that the ability to change the time periods through Minister's Rules will also allow the government to quickly respond if it becomes evident the provisions are negatively impacting families who are genuinely accessing child care.

2.20 In relation to item 10 (relating to cessation of eligibility determinations), the committee notes the minister's advice that the approach proposed in the bill will enable the appropriateness of the period to be considered alongside any changes to the time periods in items 11 and 13 of Schedule 2 to the bill.

2.21 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. While noting the minister's advice, the committee has generally not accepted a desire for administrative flexibility of itself to be a sufficient justification for allowing delegated legislation to modify the operation of primary legislation. It remains 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. The committee notes that the bill could be amended to allow for the number of weeks to be changed by legislative instrument in emergency situations only.

2.22 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.23 The committee otherwise draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of allowing delegated legislation to prescribe different numbers of weeks in relation to eligibility for Child Care Subsidy than that set out in the primary legislation.

2.24 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

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[7] 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).

[8] Senate Scrutiny of Bills Committee, Scrutiny Digest 10 of 2021, pp. 4-5.

[9] The minister responded to the committee's comments in a letter dated 30 July 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 11 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.