Bills Digest No. 21, 2022–23

PDF version [507KB]

Carol Ey, Emma Vines and James Haughton
Social Policy Section

This is a revised version of the Digest published on 17 October 2022.

Key points The Bill proposes to amend the A New Tax System (Family Assistance) Act 1999and the A New Tax System (Family Assistance) (Administration) Act 1999 to make a number of changes to the Child Care Subsidy. It proposes to increase the maximum child care subsidy rate and extend the subsidy to those with higher levels of income. It also extends the availability of subsidised childcare for Aboriginal and Torres Strait Islander children and provides for discounted fees for staff engaged as educators. The Bill includes changes to increase the transparency of child care fees, and to tighten financial scrutiny and fraud control measures. Schedule 4 includes potentially controversial primary legislative definitions of an Aboriginal or Torres Strait Islander child and an Aboriginal or Torres Strait Islander person.

Contents

Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Other provisions

 

Date introduced:  27 September 2022
House:  House of Representatives
Portfolio:  Education
Commencement: The main provisions in Schedules 1 to 4 commence on 1 July 2023. Schedules 5 and 6 commence on the later of 1 January 2023 and the day after Royal Assent. The remaining provisions commence on the day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at October 2022.

Purpose of the Bill

The main purpose of the Family Assistance Legislation Amendment (Cheaper Child Care) Bill 2022 (the Bill) is to give effect to the promise made by the Australian Labor Party (Labor) in the lead-up to the 2022 Federal election to make early childhood education and care more affordable.[1]

The Bill seeks to amend the A New Tax System (Family Assistance) Act 1999 (the FA Act) and the A New Tax System (Family Assistance) (Administration) Act 1999 (the FA Admin Act) to:

• increase the rate of the Child Care Subsidy (CCS)
• raise the family income threshold which determines eligibility for the CCS
• increase transparency surrounding the operation of child care services
• increase access to child care for Aboriginal and Torres Strait Islander children
• improve integrity within the sector
• allow child care providers to offer discounted fees to staff engaged as educators, without impacting the rate of the CCS
• introduce minor amendments to the operation of the CCS in certain limited circumstances.

Structure of the Bill

The Bill comprises eight Schedules:

• Schedule 1: contains the main amendments to the FA Act to impact the rate of child care subsidy that families are entitled to receive
• Schedule 2: amends the FA Admin Act to increase the financial reporting requirements of large providers, and to provide families with more information about the child care services they access
• Schedule 3: amends the FA Act and the FA Admin Act to introduce a base level of 36 subsidised hours of child care per fortnight for Aboriginal and Torres Strait Islander children, regardless of activity levels
• Schedule 4: amends the FA Admin Act to introduce measures that are intended to reduce fraud
• Schedule 5: amends the FA Act and the FA Admin Act to permit child care providers to offer a discount on child care fees to staff engaged as educators
• Schedules 6–8: make minor amendments to the FA Act and the FA Admin Act to improve or clarify the operation of child care subsidies.

Background

Australian Government funding for child care

The Australian Government provides child care fee assistance to families and direct assistance to services. The main program is the Child Care Subsidy (CCS), which commenced on 2 July 2018, replacing the Child Care Benefit and Child Care Rebate. A supplementary payment was also introduced at the same time, the Additional Child Care Subsidy (ACCS) which provides additional assistance for children at risk of abuse or neglect, families experiencing financial hardship, those transitioning from income support to work, grandparent carers on income support, and some low‑income families. The ACCS replaced a number of previous payments including Special Child Care Benefit, Grandparent Child Care Benefit and the Jobs, Education and Training Child Care Fee Assistance payment.[2]

The former Coalition Government introduced changes to CCS through the Family Assistance Legislation Amendment (Child Care Subsidy) Act 2021. This Act removed the annual cap on the CCS and increased the rate of the CCS paid to families with multiple children under six years of age who are eligible for the CCS.[3]

In addition, the former Government introduced temporary adjustments in response to the COVID‑19 pandemic. In April 2020, new funding arrangements were announced. The early childhood education and care relief package provided child care fee-free for families during the coronavirus pandemic. The funding arrangements were put into effect by way of a legislative instrument: the Child Care Subsidy Amendment (Coronavirus Response Measures No. 2) Minister’s Rules 2020. The Rules automatically ceased on 1 September 2020.

Committee consideration

Senate Education and Employment Legislation Committee

The Bill has been referred to the Senate Education and Employment Legislation Committee for inquiry and report by 16 November 2022. Details of the inquiry are at the home page for the inquiry.

Policy position of non-government parties/independents

Coalition

The Opposition has criticised the Bill for failing to address workforce or access issues. Shadow Minister for Early Childhood Education, Angie Bell, said that ‘The Government clearly has no plans to increase access, no plans to address educator’s concerns and no plans to address rising fees’.[4]

Australian Greens

The Australian Greens (the Greens) have similarly raised concerns over the child care workforce. Education spokeswoman, Senator Mehreen Faruqi, reportedly said that the Bill does not go ‘anywhere near far enough’, calling for both universal free child care and better conditions for educators. Additionally, she called for the activity test to be scrapped and the changes to child care to be brought forward to the beginning of 2023.[5]

Independents

Some independents, such as Member for Goldstein, Zoe Daniel, have previously called for changes to the subsidies to be brought forward.[6]

Position of major interest groups

Australian Childcare Alliance (ACA) had previously congratulated the new Prime Minister for adopting all of ACA’s policy recommendations, ‘including equitable access to affordable early learning services’. Despite this support, however, the ACA has raised concerns regarding workforce pressures facing the sector.[7]

Since the Bill’s introduction, the ACA and Early Childhood Australia (ECA) have welcomed changes which, they say, will improve access to child care for Aboriginal and Torres Strait Islander families. However, the ACA has called for reform of the activity test so as to ensure fully accessible child care.[8]

Financial implications

According to the Explanatory Memorandum to the Bill:

Total costs of the measures included in this Bill are expected to be around $4.5 billion over four years from 2022-23, taking into account the savings that will be provided by the increased integrity measures included in this Bill. Final costs of the measures included in this Bill are to be agreed in the upcoming 2022-23 October Budget and will be reflected in the relevant Budget statements.[9]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[10]

Parliamentary Joint Committee on Human Rights

At the time of writing the Parliamentary Joint Committee on Human Rights had not reported on the Bill.

Key issues and provisions

Increasing the child care subsidy

CCS is characterised by the following:

• subsidy rates are based on an individual and their partner’s combined annual taxable income
• the amount subsidised varies depending on the type of child care service which is used (for example, centre-based long day care, outside school hours care or family day care)
• an activity test determines the number of hours per fortnight a family is eligible to receive CCS[11]
• whether the individual or their partner has two or more children aged five years or under using child care[12]
• a maximum hourly amount payable via the subsidy is set by the Government (the hourly rate cap) with families receiving a percentage of the lesser of this rate or the actual fees charged based on their income.[13]

The payment is paid directly to providers to be delivered to families in the form of a fee reduction.[14]

Child care services must meet certain conditions to be approved to pass on the CSS, including requirements set by the Australian Children’s Education and Care Quality Authority.[15]

Schedule 1 of the Bill raises the maximum rate of the CCS from 85% to 90% of the fee charged (or the hourly fee cap, whichever is the lesser). The rate will gradually reduce by one percentage point for every $5,000 of family income above $80,000.[16] The CCS rate would reach zero for families with an annual income of around $530,000, an increase from the maximum family income of $356,756 currently in place.[17]

The projected effect of these changes can be seen in Figure 1.

Figure 1     Child Care Subsidy rate under the income test: % of fee or hourly rate cap

Source: Parliamentary Library estimates.

According to analysis by Ben Philips at the Australian National University Centre for Social Research and Methods (based on Labor’s election policy) the proposed changes would lower out‑of-pocket costs of child care by an average of 34%; although they favour higher income child care households, with ‘62 per cent of gains flowing to the top 40 per cent of child care households but only 15 per cent to the bottom 40 per cent of child care households’.[18]

Key provisions

The Bill amends the FA Act which contains, amongst other things, the method statement and relevant formulae for calculating the amount of CCS that is payable for sessions of care provided in respect of a child.[19]

Currently clause 3 in Schedule 2 makes reference to calculating CCS for a basic case whilst clause 3A in Schedule 2 sets out how to calculate CCS for other cases.

Amending the definitions

Items 1–10 in Schedule 1 to the Bill insert new definitions into section 3 of the FA Act and repeal others that will no longer be relevant to the calculation of an amount of CCS. The new definitions relate to relevant income thresholds and apply to the formulae for calculating the amount of CCS in Schedule 2 of the FA Act. The amendments preserve the two ways of calculating CCS but references to basic case become references to base rate and references to other cases become references to other rate in the relevant definitions.

In particular, proposed definitions of:

• fourth income (other rate) threshold inserted by item 1
• lower income (other rate) threshold inserted by item 3
• second income (other rate) threshold inserted by item 5
• third income (other rate) threshold inserted by item 7
• upper income (other rate) threshold inserted by item 9

give effect to CCS rates for second and further children in families that have more than one child under the age of six in child care.

Increasing the base rate percentage

The applicable percentage of CCS that families receive during the financial year is based on their estimated combined annual income. A family’s CCS percentage is used in combination with the child care fees charged to calculate the amount of subsidy per hour each family is entitled to receive for their child's attendance at a session of care. This will be the applicable percentage of the actual fee charged, or of the relevant hourly rate cap (whichever is lower).

Item 11 amends the table of applicable percentages for base rate CCS in subclause 3(1) in Schedule 2 of the FA Act by increasing the maximum percentage from 85% to 90%. This means, by way of example, that individuals earning equal to or less than the proposed lower income (base rate) threshold of $80,000 (inserted by item 14) will now be entitled to higher CCS rates.[20]

Amending the base rate formula

Item 12 amends the base rate formula in subclause 3(2) of Schedule 2 of the FA Act. The effect of this amendment is that for individuals earning more than the lower income (base rate) threshold ($80,000), but below the upper income (base rate) threshold ($530,000 inserted by item 14), the applicable percentage will go down by 1% for every $5,000 above the lower income (base rate) threshold they earn.

Amending the other rate formula

Items 15–17 amend subclauses 3A(1)–(5) of Schedule 2 of the FA Act. The purpose of these amendments is to give effect to rates of CCS that apply to families with more than one child under six years of age in child care.[21]

The amendments operate so that an individual with one or more children who meet the requirements of the term higher rate child as set out in clause 3B of Schedule 2 of the FA Act can receive a higher subsidy. [22]

Item 16 inserts proposed paragraph 3A(1)(c) and a note into Schedule 2 of the FA Act the effect of which is to make clear that, if the individual’s adjusted taxable income is equal to or above the upper income (other rate) threshold, ($356,756 inserted by item 17) then the individual’s applicable percentage will be determined as usual under clause 3 of Schedule 2—that is the base rate formula.

Further, proposed subclause 3A(2) (inserted by item 17) provides that if the individual’s applicable percentage will be higher if it is determined under clause 3 (that is, the base rate formula) then it is to be calculated using clause 3.

Item 17 sets out two new formulae for working out an individual’s applicable percentage where there is a higher rate child.

First, proposed subclause 3A(4) is to be used if the adjusted taxable income is above the lower income (other rate) threshold (that is, $72,466) and below the second income (other rate) threshold (that is, $177,466). The relevant formula operates so that the individual’s applicable percentage for their higher rate child will be the lower of either:

• 95% or
• the result of the following calculation
  • subtract the lower income (other rate) threshold from the individual’s adjusted taxable income
  • divide that amount by $3,000 and
  • subtract the result from 115 and round to two decimal places.[23]

This has the effect of tapering the applicable percentages down by 1 percent for every additional $3,000 over the lower income (other rate) threshold the individual earns.[24]

Second, proposed subclause 3A(5) is to be used if the adjusted taxable income is equal to or above the third income (other rate) threshold (that is, $256,756) and below the fourth income (other rate) threshold (that is, $346,756). The relevant formula operates so that the individual’s applicable percentage is worked using the following calculation:

• subtract the third income (other rate) threshold from the individual’s adjusted taxable income
• divide that amount by $3,000 and
• subtract the result from 80 and round to two decimal places.

This operates so that the applicable percentages taper down by 1 percent for every additional $3,000 over the third income (other rate) threshold the individual earns.

Item 25 repeals Part 2 of Schedule 2 of the FA Admin Act. The previous Government’s changes established a two-phased approach to determining which families continued to qualify for the higher rate child payment. Phase 1, which came into effect in March 2022, included changes providing that an individual is no longer eligible for the CCS via a fee reduction where there has been no report from a provider indicating that a session of care has been provided to a child for a period of at least 26 weeks. This change effectively prevented families from claiming the higher rate of the CCS by claiming the subsidy for an older child not actually using child care services.[25]

Phase 2, which was due to come into effect in July 2023, would have reduced the period families could continue to access the higher rate of the CCS after their eldest child left care to 14 weeks. However, speaking in relation to the Bill, Minister for Education, Jason Clare, said:

That measure is forecast to save $34 million over four years. The problem is that the same measure is forecast to cost more than $89 million to implement. That's almost three times what it was meant to save. That is an expensive saving. That measure is therefore removed in this bill.[26]

Increased provider reporting and publication of information

Part 1 of Schedule 2 to the Bill seeks to increase the financial reporting obligations for large child care providers. The purpose of this is for the Department to have greater visibility of the financial viability of large providers and so to better anticipate situations such as the collapse of ABC Learning in 2008.[27]

Currently, Division 4 of Part 8A of the FA Admin Act provides for the Secretary to request information on financial viability from large centre-based day care providers.[28] If, on the basis of this information, the Secretary has concerns about the financial viability of a provider they can engage someone to undertake an independent audit of the provider.[29]

Items 1 repeals the existing definition of large centre-based day care provider in subsection 3(1) of the FA Admin Act. Items 2 to 4 substitute a new definition of large child care provider to include those providing other services, such as family day care and outside school hours care. Under the proposed amendments, all providers (including related providers) who operate, or propose to operate 25 or more approved child care services will be subject to this requirement [proposed subsection 4A(1)].

In addition, Item 10 introduces a requirement for large providers to provide financial information as prescribed by the Minister’s rules [proposed section 203BA], while Item 11 extends the audit provision to cover the information received in these reports.

Part 2 of Schedule 2 provides for the Secretary to publish electronically a range of information about child care providers, including a list of the services provided, the fees charged and information on fee increases [proposed section 162B].

According to the Explanatory Memorandum:

It is envisioned that this information may be published on www.startingblocks.gov.au, which is administered by the Australian Children’s Education and Care Quality Authority (ACECQA) on behalf of the Commonwealth and state and territory governments to make it easier for parents to make informed decisions about what child care services to use.[30]

Increasing access for Aboriginal and Torres Strait Islander children

Schedule 3 to the Bill proposes to increase the access to child care for Aboriginal and Torres Strait Islander children through modifying the activity test requirements for receiving the CCS in the FA  Act.

Activity test

The number of hours of subsidised child care is generally based on the number of hours both members of a couple (or a single parent) are participating in recognised activities such as paid work or education.[31]

Clause 12 of Schedule 2 of the FA Act (as set out below) specifies the entitlement to CCS, depending on the number of hours of recognised activity in the fortnight. For example, where more than 16 but less than 48 hours are performed, the claimant is entitled to up to 72 hours of subsidised care for that fortnight.

Recognised activity result
Item	If an individual engages in this many hours of recognised activity in the CCS fortnight:	The result is:
1	fewer than 8	0
2	at least 8 and no more than 16	36
3	more than 16 and no more than 48	72
4	more than 48	100

Exceptions are made for children in special circumstances, such as where the child is at risk of abuse or neglect [existing sections 85CA–85CF], or the claimant is experiencing temporary financial hardship [existing sections 85CG–85CH], and in these cases a higher rate of subsidy (Additional Child Care Subsidy (ACCS)) also applies.

Benefits of quality early learning on development

Data from the Australian Early Development Census suggests that Aboriginal and Torres Strait Islander children are considerably more likely to be developmentally vulnerable than other children in their first year of schooling. For example, in the 2021 Census, 42.3% of Aboriginal and Torres Strait Islander children were considered vulnerable on at least one domain, compared to 22.0% overall, while 26.5% were vulnerable on 2 or more domains compared to 11.4% overall.[32]

It is generally acknowledged that children from disadvantaged backgrounds benefit developmentally from participating in high-quality childcare and early learning programs, particularly in the years immediately before starting school.[33]

The intention of this measure is to increase the number of Aboriginal and Torres Strait Islander children attending child care and hence improve their development prior to attending school. However, Aboriginal and Torres Strait Islander children are already enrolled in early childhood education (ECE) programs at a higher level than for all children, but their attendance rate is lower.[34] This suggests that increased access on its own may not result in significantly higher attendance. There is also less availability of child care services in rural and remote locations, as well as in socially disadvantaged areas, both of which are likely to impact access for Aboriginal and Torres Strait Islander children.[35] Therefore this measure’s impact may be dependent on the success of other measures to boost access and attendance for Aboriginal and Torres Strait Islander children.[36]

New definitions

Item 3 in Schedule 3 to the Bill inserts proposed clause 15A in Part 5 of Schedule 2 on the FA Act (which deals with the activity test). Proposed subclause 15A(1) specifies that the Aboriginal or Torres Strait Islander child result (for the purposes of the activity test) is 36. This means that at least 36 hours of CCS a fortnight is available for those caring for an Aboriginal or Torres Strait Islander child, regardless of activity levels. Those engaging in more than 16 hours of recognised activities would be eligible for additional hours of CCS on the same basis as for non-Indigenous children.

Aboriginal or Torres Strait Islander person

New definitions of an Aboriginal or Torres Strait Islander child and an Aboriginal or Torres Strait Islander person are also included in proposed clause 15A. This appears to be the first use of these definitions in Commonwealth primary legislation.[37]

Commonwealth legislation has in the recent past defined an ‘Aboriginal person’ as ‘a person of the Aboriginal race of Australia’ and a ‘Torres Strait Islander’ as ‘a descendant of an indigenous inhabitant of the Torres Strait Islands’.[38] These race-based definitions were introduced during the 1970s in order to clearly connect legislation with the Commonwealth’s ‘race power’ in section 51(xxvi) of the Constitution. However, in practice and in administration, Commonwealth programs define an Aboriginal or Torres Strait Islander person as one who:

• is of Aboriginal or Torres Strait Islander descent and
• identifies as an Aboriginal or Torres Strait Islander person and
• is accepted as such by the community in which they live or have lived.[39]

This three part definition has also been accepted as ‘the conventional meaning’ of ‘Australian Aboriginal’ [40] and has been usually, though not exclusively, used by the courts as the ‘ordinary definition’ in many cases, including Mabo v Queensland (No. 2).[41] It is also used in some state legislation, such as the Aboriginal Land Rights Act 1983 (NSW) [section 4].

The definition proposed in the Bill changes the second and third parts of the ordinary three-part definition to:

• identifies as a person of that descent and
• is accepted by the community in which the person lives as being of that descent.

This definition is apparently based on the definition of Aboriginal or Torres Strait Islander student made in section 16 of the Australian Education Regulation 2013.[42] That instrument’s Explanatory Statement does not explain the change from previous legislative or administrative definitions.[43]

Aboriginal or Torres Strait Islander child

The definition of an Aboriginal or Torres Strait Islander child replicates those three criteria. However, it has been expanded to include two alternate criteria:

• the child is biologically related to an Aboriginal or Torres Strait Islander person [proposed paragraph 15A(3)(b)] or
• the child is a member of a class prescribed by the Minister’s rules [proposed paragraph 15A(3)(c)].

Effect of the new definitions

There is no rationale provided in the Explanatory Memorandum for these changes to the three- part definition. The ‘biologically related’ alternate criteria is explained as ‘enabl[ing] the inclusion of children who may be too young to have formed a sense of cultural identity’ while the ability to prescribe a class in the Minister’s rules is explained as ‘provid[ing] some flexibility to expand the definition in case it is identified as being too narrow’.[44] Given the precedent set in the case of Shaw v Wolf in which Justice Merkel found that descent did not need to be proved ‘according to any strict legal standard’ it is unclear how the courts would interpret new  provisions relating to descent. Justice Merkel stated:

That some descent may be an essential legal criterion required by the definition in the Act is be accepted. However in truth, the notion of "some" descent is a technical rather than a real criterion for identity, which after all in this day and age, is accepted as a social, rather than a genetic, construct.[45]

The new definitions potentially create a number of issues, for example:

• It may be difficult for the communities in which people currently live to assess whether someone is of Aboriginal or Torres Strait Islander descent, for example, where someone has moved away from their birth community. Other uses of this community-based definition usually add ‘or has lived’, so as to remove any requirement to repeatedly prove Indigenous status in one’s current residential community.[46]
• ‘Descent’ may be sensitive or difficult to prove for Aboriginal or Torres Strait Islander people or their children who were removed from their families, or who lack birth certificates.
• It is unclear whether a non-biologically-related child legally adopted by an Aboriginal or Torres Strait Islander parent would qualify.
• The introduction of a reference to being ‘biologically related’ as an alternate, sole criteria potentially makes the subsidy accessible to people who have no connection with an Aboriginal or Torres Strait Islander identity or community, but have a distant Indigenous ancestor (identified, for example, through ancestry DNA test kits).
• The repeated emphasis on descent and biological relationship potentially limits the right of self‑identification under Article 33 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), including the right not to identify as Indigenous.

Prominent Aboriginal organisations and legal academics have formerly stated that courts have previously over-emphasised ‘descent’, in ways which do not recognise Indigenous kinship relations and rights of self-determination.[47] This new definition may exacerbate these concerns.

Dealing with serious non-compliance

The CCS scheme has been the target of fraud, with providers signing up children who do not actually attend the service, but for which the provider claims the CCS.[48] It is anticipated that the increased subsidies provided for in the Bill will increase the incentive for fraud.

Schedule 4 consists of three parts each of which amends the FA Admin Act:

• Part 1 introduces new requirements to ensure providers have in place arrangements to ensure those with management and control of the provider comply with the family assistance law.
• Part 2 requires the electronic payment of gap fees.
• Part 3 provides for the information required to be included in the weekly session reports to be specified in the Secretary’s Rules, rather than leaving the requirements to be specified administratively.

Under existing section 194C (for providers) and section 194D (for services) in Part 8 of the FA Admin Act (which deals with approval of child care services), the eligibility rules require those with management and control of the provider or service to be ‘a fit and proper person to be involved in the administration of CCS and ACCS’. Subsection 194E(1) then requires the Secretary to consider if someone is a fit and proper person, having regard to, among other things ‘the arrangements the person has: to ensure the person complies with the family assistance law [subparagraph 194E(1)(g)(i)]; and to ensure anyone the person is responsible for managing complies with the family assistance law’ [subparagraph 194E(1)(g)(ii)].

Item 3 in Part 1 of Schedule 4 repeals this requirement. Instead items 1 and 2 insert proposed paragraphs 194C(da) and 194D(da) respectively to place the onus on the provider to have in place arrangements to ensure that those with management and control of the provider or service comply with family assistance law. The Government considers that placing this obligation directly in the eligibility rules, rather than retaining it as a consideration in the fit and proper person test, strengthens the requirement.[49]

Under the changes proposed in Part 2 providers will be obliged to collect gap fees by electronic payment (with exceptions for special circumstances). This is intended to provide an electronic record of payments as in many of the fraud cases identified no gap fees had been paid.[50]

Discount on fees to staff engaged as educators

The Bill would also legislate to allow providers to offer discounts to their educators. The Explanatory Memorandum indicates that the ‘objective of this measure is to reduce staff shortage in the [early childhood education and care] ECEC sector by attracting and retaining existing educators, particularly those with young children’.[51]

Although this has already been implemented on a short-term basis through the Minister’s Rule made under subsection 201B(1A) of the FA Admin Act, it is considered that these short-term changes are better legislated, and that this provides an opportunity to clarify the fringe benefits tax implications of the measure.[52]

Schedule 5 proposes to amend the definition of the ‘hourly session fee’ in subclause 2(2) of Schedule 2 of the FA Act, to ensure the amount reflects what the educator, prior to any discount, would be liable to pay. The effect of this is that educators eligible for a discount on their own child care costs will not have their CCS payments reduced. The Bill would also insert a note that would highlight that the allowable discount would not attract fringe benefits tax in the circumstances set out in subsection 47(2) of the Fringe Benefits Tax Assessment Act 1986 (very basically, if the benefit provided to a current employee is child care provided in a child care facility located on the business premises of the employer).[53]

The Bill also inserts proposed section 201BA into the FA Admin Act setting out the arrangements for these discounts, including prohibiting the ‘permissible educator discount’ from being more than 95% of the pre-discount fee for a week.

Other provisions

Schedules 6 to 8 propose technical amendments to improve clarity and flexibility in the event of certain exceptional circumstances.

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[1].      Australian Labor Party (ALP), Labor’s plan for cheaper child care, ALP policy document, Election 2022.

[2].      Australian Government, ‘Additional Child Care Subsidy’, Services Australia website, last updated 10 December 2021.

[3].      Michael Klapdor, ‘Family Assistance Legislation Amendment (Child Care Subsidy) Bill 2021’, Bills Digest, 8, 2021–22, (Canberra: Parliamentary Library, 2021).

[4].      Angie Bell (Shadow Minister for Early Childhood Education), ‘Labor’s Child Care Bill leaves Educators and Regions Behind’, media release, 27 September 2022.

[5].      Mehreen Faruqi (Senator for New South Wales) cited in Sarah Ison, ‘$900m Saving on Childcare Reforms but Bill faces Hurdles’, Australian, 28 September 2022, 5.

[6].      Zoe Daniel (Member for Goldstein) in Gerard Cockburn and Dan Jervis-Bardy, ‘Childcare Spend “Urgent”’, Canberra Times, 6 September 2022.

[7].      Emphasis in original. Australian Childcare Alliance, ‘Working Together to Prioritise Families with Young Children–ACA Congratulates Prime Minister Albanese’, media release, 23 May 2022.

[8].      Freya Lucas, ‘Government Removes Key Barrier to Early Learning for First Nations Families, Boosts Subsidised Hours’, The Sector, 27 September 2022.

[9].      Explanatory Memorandum, Family Assistance Legislation Amendment (Cheaper Child Care) Bill 2022, 4.

[10].    The Statement of Compatibility with Human Rights can be found at pages 6–11 of the Explanatory Memorandum to the Bill.

[11].    FA Act, Schedule 2, clause 4.

[12].    FA Act, Schedule 2, clause 1. Department of Social Services (DSS), ‘3.5 CCS entitlement’, Family Assistance Guide, DSS website, last reviewed 7 February 2022.

[13].    FA Act, Schedule 2, clause 2.

[14].    FA Act, Schedule 2, clause 1.

[15].    ‘National Quality Framework’, Australian Children’s Education and Care Quality Authority.

[16].    Item 12 of Schedule 1 to the Bill and Explanatory Memorandum, Family Assistance Legislation Amendment (Cheaper Child Care) Bill 2022, 14–15. See also: Australian Labor Party (ALP), Women to kickstart Australia’s Economic Recovery [Labor’s Cheaper Child Care Plan], ALP policy document, Election 2022.

[17].    ‘Your income can affect it’, Services Australia, 1 July 2022; ‘Changes if you get family payments’, Services Australia, 29 September 2022.

[18].    Ben Philips, Research Note: Modelling of the 2022 Coalition and Labor Child Care Policies, (Canberra: ANU Centre for Social Research and Methods, 2022), 9–10.

[19].    Note that this Bills Digest refers to sections of the FA Act and refers to clauses of a Schedule to the FA Act.

[20].    Explanatory Memorandum, 14.

[21].    Explanatory Memorandum, 15.

[22].    Department of Social Services (DSS), ‘1.2.6 Child Care Subsidy (CCS) – description’, Family Assistance Guide, DSS website, last reviewed 7 February 2022.

[23].    Explanatory Memorandum, 17.

[24].    For further information about the current method for calculating the rate of Child Care Subsidy see: DSS, ‘3.5.4 Calculating CCS entitlement’, Family Assistance Guide, DSS website, last reviewed 7 February 2022.

[25].    Klapdor, 18.

[26].    Jason Clare, Second Reading Speech: Family Assistance Legislation Amendment (Cheaper Child Care) Bill 2022, House of Representatives, Debates, (proof), 27 September 2022, 2.

[27].    Julia Gillard (Minister for Education), ‘ABC Learning: Administration and Receivership’, media release, 6 November 2008.

[28].    FA Admin Act, section 203A.

[29].    FA Admin Act, section 203C.

[30].    Explanatory Memorandum, 24–25.

[31].    DSS, ‘1.2.6 Child Care Subsidy (CCS) – description’, Family Assistance Guide, DSS website, last reviewed 7 February 2022.

[32].    Department of Education, Skills and Employment (DESE), Australian Early Development Census National Report 2021 (Canberra: DESE, 2022), 14 and 29.

[33].    See, for example, Australian Institute of Health and Welfare (AIHW), Literature Review of the Impact of Early Childhood Education and Care on Learning and Development, Working paper, (Canberra: AIHW, 2015), 17.

[34].    Michael Klapdor and Shannon Clark, ‘Child Care and Early Childhood Education’, Parliamentary Library Briefing Book: Key issues for the 46th Parliament (Canberra: Parliamentary Library, July 2019).

[35].    Peter Hurley, ‘More than 1 Million Australians have no Access to Childcare in their Area’, The Conversation, 22 March 2022.

[36].    ‘Closing the Gap in early childhood’, Department of Education, 7 September 2022.

[37].    Aboriginal or Torres Strait Islander child is defined at subsection 23(1) of the Social Security Act 1991, but the definition focuses solely on the child being a descendant of an ‘Indigenous inhabitant’ of Australia or the Torres Strait Islands and differs from the definition in the Bill.   

[38].    For example, in section 4 of the Aboriginal and Torres Strait Islander Act 2005.

[39].    For example, Study and Compliance Branch, Department of Social Services (DSS), ‘ABSTUDY Policy Manual’, (Canberra: DSS, September 2022), 42.

[40].    Justice Deane in Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1.

[41].    Justice Brennan phrased the test as ‘Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.’ Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1, at 83. See Australian Law Reform Commission (ALRC) Legal definitions of Aboriginality, Essentially Yours: The Protection Of Human Genetic Information In Australia, Report, 96, (Canberra: ALRC, 2010), 914–921 for discussion.

[42].    Tristan Reed, Family Assistance Legislation Amendment (Cheaper Child Care) Bill 2022, Senate Education and Employment Legislation Committee, 21 October 2022, 63.

[43].    Explanatory Statement, Australian Education Regulation 2013, 14.

[44].    Explanatory Memorandum, 27.

[45].    Shaw v Wolf [1998] FCA 389. While the Love and Thoms case (Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3)) gave Indigenous Australians a unique constitutional status as non-aliens, it did not change the definitions of Indigenous status or descent codified in Mabo v Queensland [No 2] and Shaw v Wolf. See also, ALRC, Legal definitions of Aboriginality.

[46].    For example, Study and Compliance Branch, Department of Social Services (DSS), ABSTUDY Policy Manual (Canberra: DSS, September 2022), 43.

[47].    ALRC, Legal definitions of Aboriginality.

[48].    See, for example, Alexis Carey, ‘Police Minister Slams Sophisticated $4 Million Alleged Childcare Rorters‘, news.com.au, 13 September 2019.

[49].    Explanatory Memorandum, 30.

[50].    Explanatory Memorandum, 32.

[51].    Explanatory Memorandum, 36.

[52].    See Division 1A of Part 5 of the Child Care Subsidy Minister's Rules 2017; Explanatory Memorandum, 36.

[53].    Explanatory Memorandum, 37.

 

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