Commonwealth Numbered Acts

CHILD CARE LEGISLATION AMENDMENT ACT 1996 No. 80 of 1996 - SCHEDULE 2

Schedule 2-Amendment of the Childcare Rebate Act 1993 1 Subsection 3(4) Omit
"not", substitute "not,". 2 Section 4 Insert:
business partner means a partner in a partnership between 2 or more persons
carrying on a business of providing child care. 3 Section 4 Insert:
partner, except in the expression "business partner", has the meaning given by
subsection 5(2). 4 Section 4 (paragraph (b) of the definition of parental
member) Omit "(within the meaning of subsection 5(2))". 5 Subsection 5(2) Omit
"purpose of paragraph (1)(b)", substitute "purposes of this Act". 6 Paragraph
5(4)(b) Repeal the paragraph, substitute:

   (b)  members of 2 or more families are legally responsible (whether alone
        or jointly with a person who is, or is not, a member of either or any
        of those families) for the day-to-day care, welfare and development of
        the child. 7 At the end of section 10 Add:

(2) If a person who is not a parent of a particular child under subsection (1)
has the day-to-day care of the child on a long term basis (otherwise than in
the course of carrying on a business of providing care or a business of a
pre-school), the Commission may determine, in writing, that the person is
taken to be a parent of the child.

(3) A person may apply in writing to the Commission for a determination under
this section.

(4) In making determinations under this section, the Commission must comply
with any guidelines made under section 62AA in relation to the making of such
determinations. 8 Subsection 11(1) Omit "subsection (2)", substitute "this
section". 9 After subsection 11(1) Insert:

(1A) Subject to subsection (2), a child is a dependent child of another person
if the other person is taken, by a determination in force under subsection
10(2), to be a parent of the child. 10 At the end of section 16 Add:

(4) In making determinations under this section, the Commission must comply
with any guidelines made under section 62AA in relation to the making of such
determinations. 11 Section 17 Repeal the section. 12 Subsections 27(1), (2)
and (3) Repeal the subsections, substitute:

(1) Subject to subsection (4): child care means:

   (a)  care of a child provided:

        (i)    at the child's home; or

        (ii)   at the home of a registered carer who is providing the care; or

        (iii)  at a child care centre within the meaning of section 4A of the
               Child Care Act 1972; or

   (b)  care of a child that is provided otherwise than as mentioned in
        paragraph (a) if there is in force a determination by the Commission
        stating that care of that kind provided to a child constitutes child
        care for the purposes of this Act.

(2) The Commission may, in writing, make determinations for the purposes of
paragraph (1)(b) of the definition of child care in subsection (1).

(3) A person may apply in writing to the Commission for a determination under
this section.

(4) In making determinations under this section, the Commission must comply
with any guidelines made under section 62AA in relation to the making of such
determinations. 13 Paragraph 36(c) Repeal the paragraph, substitute:

   (c)  the claim relates to child care provided by a registered carer to:

        (i)    the registered carer's own dependent children; or

        (ii)   if the registered carer has a partner or a business partner-
               dependent children of the partner or business partner; or 14 At
               the end of section 36 Add:

(2) Paragraph (1)(d) does not prevent childcare rebate from being payable in
respect of a claim in circumstances determined by the Minister.

(3) A determination under subsection (2) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation  Act 1901 . 15 After
section 36 Insert: 36AA Decision on claim

(1) Subject to this section, the Commission is to make a decision on a claim
within 14 days after the claim is made.

(2) If:

   (a)  the Commission considers that childcare rebate may not be payable in
        respect of a claim; and

   (b)  the Commission wishes to make further inquiries into matters relevant
        to the claim; the Commission must, as soon as practicable, give notice
        in writing to the parental member of the family who made the claim:

   (c)  stating that the Commission considers that childcare rebate may not be
        payable in respect of the claim; and

   (d)  stating that the Commission wishes to make further inquiries and
        setting out the matters into which the Commission wishes to make those
        inquiries.

(3) If the Commission gives a notice under subsection (2) in respect of a
claim, the Commission may defer the making of a decision on the claim until:

   (a)  the end of 28 days after the day on which the notice was given; or

   (b)  the Commission is satisfied as to whether or not childcare rebate is
        payable in respect of the claim; whichever first occurs.

(4) If the Commission gives a notice under subsection (2) but has not informed
the claimant in writing of its decision on the claim before the end of the
period referred to in paragraph (3)(a), the Commission is taken to have made a
decision that childcare rebate is payable in respect of the claim. Note: A
decision that childcare rebate is not payable in respect of a claim is
reviewable under Division 3 of Part 5. 36AB Suspension of payments pending
inquiries into registration of a family or carer

(1) If:

   (a)  the Commission considers that the registration of a family or of a
        carer may have to be cancelled; and

   (b)  the Commission wishes to make further inquiries into matters relevant
        to the possible cancellation of the registration; the Commission may,
        by written notice to a parental member of the family or the carer, as
        the case may be, suspend the payment of childcare rebate in respect of
        a child of the family or a child to whom the carer is providing care,
        as the case may be.

(2) A suspension of the payment of childcare rebate in respect of a child that
is made under subsection (1) continues until:

   (a)  the end of 28 days after the day on which the notice was given; or

   (b)  the Commission, by written notice to the parental member or carer, as
        the case may be, revokes the suspension; or

   (c)  the relevant registration is cancelled; whichever first happens.

(3) A suspension of the payment of childcare rebate under subsection (1) is
taken never to have affected the payability of childcare rebate if the period
of the suspension ends under paragraph (2)(a) or (b). 16 Section 38 After
"However,", insert "except in circumstances determined by the Minister,". 17
At the end of section 38 Add:

(2) A determination under subsection (1) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation  Act 1901 . 18 Sections 45
and 46 Repeal the sections, substitute: 45 Calculation of rebate Rebate
percentage

(1) The rebate percentage that applies in working out the childcare rebate for
a week (the current week) is:

   (a)  30% if a family payment notice, or family income notice, under section
        46 applies to either parental member for the current week; or

   (b)  20% in all other cases. Amount of rebate-claims less than the maximum
        claimable amount

(2) If the claimant's weekly child care expenditure for the current week:

   (a)  exceeds the minimum weekly threshold; and

   (b)  is less than the claimant's maximum claimable amount for the current
        week; then the amount of childcare rebate payable on the claim for the
        current week is worked out using the formula:
      Rebate    x  (Weekly child care  -  Minimum weekly)

    percentage     (   expenditure          threshold   ).
Amount of rebate-claims equal to or greater than the maximum claimable amount

(3) If the claimant's weekly child care expenditure for the current week
equals or exceeds the claimant's maximum claimable amount for the current
week, then the amount of childcare rebate payable on the claim for the current
week is worked out using the formula:
      Rebate    x  (Maximum claimable  -  Minimum weekly)

    percentage     (     amount             threshold   ).
Reduction of rebate if other claims already made

(4) If the claimant, or another member of the claimant's family, has
previously made any other claims relating to child care provided during the
current week, then the rebate calculated under subsection (1) or (2) is
reduced by the amounts of childcare rebate paid or payable in respect of those
other claims. 46 Family payment notices and family income notices Issue of
family payment notice

(1) The Secretary may issue a notice (a family payment notice) to a person
stating that the person is receiving, or will receive, family payment. The
notice has effect from a date specified in the notice (which may be earlier
than the date on which the notice is issued). Issue of family income notice

(2) The Secretary may issue a notice (a family income notice) to a person
stating that the person satisfies the family income test. The notice has
effect from a date specified in the notice (which may be earlier than the date
on which the notice is issued). Cancellation of notices by Secretary

(3) The Secretary may issue a notice to a person cancelling a family payment
notice or family income notice previously issued to the person. The
cancellation has effect from a date specified in the cancellation notice
(which may be earlier than the date on which the cancellation notice is
issued). Note: A cancellation notice might result in an overpayment for the
purposes of section 61. For example, if the cancellation has effect for a week
for which childcare rebate has already been paid at the 30% rate. Matters
relevant to issue or cancellation of notices by Secretary

(4) In deciding whether to issue or cancel a family payment notice or family
income notice, the only matters that the Secretary may take into account are
the matters that can be taken into account under the Social Security Act 1991
in deciding whether a person should receive family payment or whether a person
satisfies the family income test. Recipient of notice to notify Commission of
cancellation

(5) A person to whom a cancellation notice is issued must notify the
Commission in writing of the cancellation, and its date of effect, within 14
days after receiving the cancellation notice. Penalty: 20 penalty units.
Termination of family income notice by parental member

(6) A family income notice issued to a parental member may be terminated by
either parental member by giving a written termination notice to the
Commission. The termination has effect from a date specified in the
termination notice (which may be earlier than the date on which the
termination notice is given to the Commission). Review of decisions relating
to notices

(7) Chapter 6 of the Social Security Act 1991 applies to the following
decisions as if they were specified in subsection 1240(1) of that Act:

   (a)  a decision not to issue a family payment notice or family income
        notice;

   (b)  a decision under subsection (3) to cancel a family payment notice or
        family income notice. Manner of giving notices

(8) A notice by the Secretary to a person under this section may be included
in any other notice issued or given to the person under the
Social Security Act 1991.

(9) A notice by the Secretary under this section that is not included in
another notice in accordance with subsection (8) may be given personally or by
post. No implied power to vary or revoke notices

(10) Subsection 33(3) of the Acts Interpretation Act 1901 does not apply to
any notice issued or given under this section. Requirement to provide
information

(11) When issuing a family payment notice or family income notice, the
Secretary may include a requirement that the person to whom the notice is
issued must notify the Secretary, within a reasonable period specified in the
notice, if:

   (a)  a stated event or change of circumstances occurs; or

   (b)  the person becomes aware that a stated event or change of
        circumstances is likely to occur. The stated event or change of
        circumstances must be relevant to a decision of the Secretary as to
        whether the family payment notice or family income notice ought to be
        cancelled.

(12) If the Secretary has issued a family payment notice or family income
notice to a person, the Secretary may issue a notice to the person under this
subsection requiring the person to give the Secretary, within a reasonable
period specified in the notice, a written statement about a matter that might
be relevant to a decision of the Secretary as to whether the family payment
notice or family income notice ought to be cancelled.

(13) A notice that contains a requirement under subsection (11) or (12) for a
person to give information or a statement to the Secretary must state how the
recipient is to give the information or statement. However, the notice is not
invalid merely because it fails to comply with this subsection.

(14) A requirement under subsection (11) or (12) in relation to a family
income notice does not apply at any time after the family income notice is
terminated under subsection (6).

(15) A person must not, without reasonable excuse, refuse or fail to comply
with a requirement under subsection (11) or (12) to the extent that the person
is capable of complying with the notice. Penalty: 20 penalty units. Delegation
by Secretary

(16) The Secretary may by signed instrument delegate to an officer of the
Department of Social Security all or any of the powers of the Secretary under
this section. Interpretation

(17) In this section:
family income test means the family income test set out in ModuleÊC of the
Family Tax Payment Rate Calculator in sectionÊ1070 of the
Social Security Act 1991.
family payment means family payment under the Social Security Act  1991 .
Secretary means the Secretary to the Department of Social Security. 19 After
subsection 48(1) Insert:

(1A) Anything done under this Act by the Managing Director, or by a member of
the Commission's staff in the name of the Managing Director, is taken to have
been done by the Commission. 20 Paragraph 49(4)(b) (other than the note)
Repeal the paragraph, substitute:

   (b)  give written notice to the applicant setting out:

        (i)    the number so issued; and

        (ii)   the day on which the registration is taken to have had effect;
               and

        (iii)  the periods (if any) during which the registration is taken,
               because of subsection (3B), not to have had effect; and

        (iv)   the matters of which the applicant is required to notify the
               Commission under subsection 50A(1). 21 Paragraph 50(1)(a)
               Repeal the paragraph, substitute:

   (a)  the applicant is providing, or intends within a reasonable time after
        making the application to provide, child care to children other than:

        (i)    the applicant's own dependent children; and

        (ii)   if the applicant has a partner or a business partner- dependent
               children of the partner or business partner; and 22 After
               section 50 Insert: 50A Registered carer to notify Commission of
               matters affecting eligibility for registration

(1) If a person who is a registered carer:

   (a)  has, after the person was registered and whether before or after the
        commencement of this section, become aware of any matter existing when
        the person was registered as a result of which the person was
        ineligible for registration; or

   (b)  has, whether before or after the commencement of this section, become
        aware of any matter occurring after the person was registered as a
        result of which the person is no longer eligible for registration; the
        person must notify the Commission in writing of the matter as soon as
        practicable after:

   (c)  the person became aware of the matter; or

   (d)  the commencement of this section; whichever is the later. Penalty: 20
        penalty units.

(2) The Commission must determine the matters of which registered carers are
required to notify the Commission under subsection (1).

(3) In making determinations under subsection (2), the Commission must comply
with any guidelines made under section 62AA in relation to the making of such
determinations. 23 Section 53 Omit "An application may be made to the
Commission for reconsideration of any of the following decisions", substitute
"The following decisions are reviewable decisions for the purposes of this
Act". 24 Before paragraph 53(a) Insert:

   (aa) a refusal to make a determination under section 10 that a person is
        taken to be a parent of a particular child; 25 At the end of section
        53 Add:
; (j) a decision under subsection 36AB(1) to suspend payment of childcare
rebate. 26 Subsection 61(4) Omit "of the Commission". 27 At the beginning of
Part 6 Insert: 62AA Guidelines for making determinations

(1) If a section of this Act contains a provision declaring that the
Commission must, in making determinations under that section, comply with any
guidelines made under this section in relation to the making of such
determinations, the Minister may make guidelines about the making of such
determinations.

(2) The guidelines are disallowable instruments for the purposes of section
46A of the Acts Interpretation Act 1901. 28 Saving provision A guideline that
was in force immediately before the commencement of item 11, under section 17
of the Childcare Rebate Act 1993 as then in force, continues in force as if it
had been made under section 62AA of the Childcare Rebate Act 1993. 29
Application of amendments relating to rebate percentage The amendment made by
item 18 applies to the calculation of childcare rebate for the week starting
on 7 April 1997, and for all later weeks. [Minister's second reading speech
made in-
House of Representatives on 10 October 1996
Senate on 7 November 1996]