Family Assistance Legislation Amendment (Improving Assistance for Vulnerable and Disadvantaged Families) Bill 2020 [2020] AUSStaCSBSD 50 (2 April 2020)

• Family Assistance Legislation Amendment (Improving Assistance for Vulnerable and Disadvantaged Families) Bill 2020
• Retrospective commencement—Schedule 13
• Retrospective application—Schedule 25

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Family Assistance Legislation Amendment (Improving Assistance for Vulnerable and Disadvantaged Families) Bill 2020

Purpose	This bill seeks to makes changes to Additional Child Care Subsidy (child wellbeing) and to the calculation method used when an individual whose relationship status changes throughout the year meets the Child Care Subsidy (CCS) reconciliation conditions
Portfolio	Education
Introduced	House of Representatives on 26 February 2020

Retrospective commencement—Schedule 1^[3]

1.7 Item 7 of Schedule 1 to the bill seeks to amend subparagraphs 197G(1)(b)(ii) and (iii) of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act). Section 197G of the Administration Act allows the Secretary to vary the approval of an approved provider to remove an approved child care service from the provider's approval if:

• the service fails to provide child care for a continuous period of three months; and

• none of the circumstance in paragraph 197G(1)(b) apply.

1.8 The amendment to subparagraph 197G(1)(b)(ii) provides that a determination made under section 195C (that the service need not operate for a period) must apply only to the service that the Secretary is considering removing from the provider's approval, and not to all the provider's services as set out in the existing provision. The amendment to subparagraph 197G(1)(b)(iii) provides that the Secretary must be satisfied that because of special circumstances, the provider's approval should not be varied, rather than cancelled as set out in the existing provision).

1.9 Clause 2 of the bill provides that item 7 of Schedule 1 commences immediately after Schedule 2 to the Family Assistance Legislation Amendment (Building on the Child Care Package) Act 2019, which commenced on 13 December 2019.

1.10 In relation to item 7 of Schedule 1 to the bill, the explanatory memorandum states that:

This amendment commences immediately after the two subparagraphs it amends took effect. This retrospective commencement is appropriate given that this amendment is necessary to allow section 197G to operate effectively and fairly for both the Australian Government and approved providers. This amendment also gives effect to the original policy intention of the measure when paragraph 197G(1)(b) was amended under Family Assistance Legislation Amendment (Building on the Child Care Package) Act 2019.^[4]

1.11 Item 8 of Schedule 1 to the bill seeks to specify that a civil penalty of 50 penalty units applies to offences under subsection 204K(6) of the Administration Act. Clause 2 of the bill provides that item 8 of Schedule 1 to the bill commences immediately after Part 1 of Schedule 1 to the Family Assistance Legislation Amendment (Building on the Child Care Package) Act 2019, which commenced on 16 December 2019.

1.12 In relation to item 8 of Schedule 1 to the bill, the explanatory memorandum states that:

This amendment commences immediately after it was inadvertently repealed to ensure that there is no gap in the period of time that the civil penalty applies to subsection 204K(6). This retrospective commencement is appropriate given that the amendment reinstates what was previously in the legislation and was unintentionally repealed. It also ensures that there is certainty for the Australian Government, approved providers and individuals about the amount of civil penalty that would apply if subsections 204K(1) or (3) were contravened. This is important given that section 204K imposes requirements on approved providers to give notice to appropriate State and Territory support agencies where a child is at risk of serious abuse or neglect.

1.13 The committee has a long-standing scrutiny concern about provisions that commence retrospectively, as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals.

1.14 Generally, where proposed legislation will have a retrospective effect the committee expects the explanatory materials should set out the reasons why retrospectivity is sought, and whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected. From a scrutiny perspective, the committee does not consider that the information provided in the explanatory memorandum fully justifies why items 7 and 8 of Schedule 1 to the bill apply retrospectively.

1.15 The committee requests the minister's more detailed advice regarding why it is necessary and appropriate for the measures in items 7 and 8 of Schedule 1 to commence retrospectively.

1.16 The committee's consideration of this matter would be assisted if the advice contained information regarding:

• in relation to item 7—whether there will be a detrimental effect for any providers, and if so the extent of that detriment and the number of providers affected; and

• in relation to item 8—whether any providers may have reasonably relied on the removal of the civil penalty amount and how many providers may be subject to the penalty retrospectively.

Retrospective application—Schedule 2^[5]

1.17 Schedule 2 to the bill seeks to make amendments to how Child Care Subsidy (CCS) entitlements are reviewed when an individual who is a member of a couple for some but not all of the CCS fortnights in an income year meets the CCS reconciliation conditions. Item 2 of Schedule 2 provides that these amendments will apply in relation to reviews, at CCS reconciliation, of child care decisions made in relation to sessions of care provided in CCS fortnights starting in the 2019-2020 income year. The explanatory memorandum states:

This enables the fairer, amended entitlement methodology, to be applied in respect of CCS payable for sessions of care provided in the 2019-2020 financial year...^[6]

1.18 As noted above, the committee has a long-standing scrutiny concern about provisions that have the effect of applying retrospectively, as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals.

1.19 Generally, where proposed legislation will have a retrospective effect the committee expects the explanatory materials should set out the reasons why retrospectivity is sought, and whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected. The committee does not consider that the explanatory memorandum provides an adequate justification for the retrospective application of the proposed amendments in Schedule 2 to the bill.

1.20 The committee requests the minister's more detailed advice regarding why it is necessary and appropriate for the amendments in Schedule 2 to apply retrospectively. The committee's consideration of the matter would be assisted if the advice addresses whether the amendments will have a detrimental effect on any individuals, and if so, the number of individuals that may be affected.

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[3] Schedule 1, items 7 and 8. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[4] Explanatory memorandum, p. 18.

[5] Schedule 2, item 2. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[6] Explanatory memorandum, p. 23.