Commonwealth: Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017 (Cth)

Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017 No. 22, 2017 Compilation No. 1 Compilation date: 18 October 2023 Includes amendments up to: Act No. 74, 2023 Registered: 2 November 2023 About this compilation This compilation This is a compilation of the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017 that shows the text of the law as amended and in force on 18 October 2023 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Main amendments A New Tax System (Family Assistance) Act 1999 A New Tax System (Family Assistance) (Administration) Act 1999 Schedule 2—Consequential amendments A New Tax System (Goods and Services Tax) Act 1999 Early Years Quality Fund Special Account Act 2013 Fringe Benefits Tax Assessment Act 1986 Income Tax Assessment Act 1997 Schedule 3—Other amendments Part 1—Amendments commencing day after Royal Assent A New Tax System (Family Assistance) Act 1999 A New Tax System (Family Assistance) (Administration) Act 1999 A New Tax System (Goods and Services Tax) Act 1999 Part 2—Amendments commencing 1 July 2017 A New Tax System (Family Assistance) (Administration) Act 1999 Schedule 4—Application, saving and transitional provisions Part 1—Introduction Part 2—Child care subsidy and additional child care subsidy Part 3—Child care benefit and child care rebate Part 4—Providers of child care services Part 5—Miscellaneous Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to amend the law relating to family assistance, and for related purposes 1 Short title This Act is the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 4 April 2017 2. Schedules 1 and 2 2 July 2018. 2 July 2018 3. Schedule 3, Part 1 The day after this Act receives the Royal Assent. 5 April 2017 4. Schedule 3, Part 2 1 July 2017. 1 July 2017 5. Schedule 4 The day after this Act receives the Royal Assent. 5 April 2017 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Main amendments A New Tax System (Family Assistance) Act 1999 1 Subsection 3(1) Repeal the following definitions: (a) definition of 24 hour care; (b) definition of 24 hour care limit; (c) definition of 24 hour care period; (d) definition of absence. 2 Subsection 3(1) Insert: ACCS: see additional child care subsidy. ACCS (child wellbeing): see additional child care subsidy. ACCS (grandparent): see additional child care subsidy. ACCS hourly rate cap has the meaning given by subclause 6(2) of Schedule 2. ACCS (temporary financial hardship): see additional child care subsidy. ACCS (transition to work): see additional child care subsidy. activity test result has the meaning given by clause 11 of Schedule 2. additional child care subsidy or ACCS means additional child care subsidy for which: (a) an individual or an approved provider may become eligible under section 85CA (ACCS (child wellbeing)); or (b) an individual may become eligible under section 85CG (ACCS (temporary financial hardship)); or (c) an individual may become eligible under section 85CJ (ACCS (grandparent)); or (d) an individual may become eligible under section 85CK (ACCS (transition to work)). annual cap has the meaning given by subclause 1(2) of Schedule 2. applicable percentage has the meaning given by clause 3 of Schedule 2. CCS: see child care subsidy. CCS fortnight means a period of 2 weeks beginning on: (a) Monday 2 July 2018; or (b) every second Monday after that Monday. CCS hourly rate cap has the meaning given by subclause 2(3) of Schedule 2. 3 Subsection 3(1) Repeal the following definitions: (a) definition of child care benefit; (b) definition of child care rebate. 4 Subsection 3(1) Insert: child care subsidy or CCS means child care subsidy for which an individual may become eligible under section 85BA. child wellbeing result has the meaning given by clause 15 of Schedule 2. deemed activity test result has the meaning given by clause 16 of Schedule 2. extended child wellbeing period has the meaning given by subclause 15(3) of Schedule 2. 5 Subsection 3(1) (paragraphs (d) and (da) of the definition of family assistance) Repeal the paragraphs, substitute: (d) child care subsidy; or (da) additional child care subsidy; or 5A Subsection 3(1) Insert: fourth income threshold has the meaning given by subclause 3(4) of Schedule 2. 6 Subsection 3(1) (paragraph (b) of the definition of FTB child) Repeal the paragraph, substitute: (b) in relation to child care subsidy and additional child care subsidy—has the meaning given in Subdivision A of Division 1 of Part 3 (except for section 24), but in applying Subdivision D of that Division to CCS or ACCS, a reference in Subdivision D to a claim for payment of family tax benefit is taken to be a reference to a claim for CCS; and 7 Subsection 3(1) Insert: hourly rate of ACCS: (b) for an individual—has the meaning given by subclause 6(1) of Schedule 2; or (c) for an approved provider—has the meaning given by subclause 9(1) of Schedule 2. hourly rate of CCS has the meaning given by subclause 2(1) of Schedule 2. hourly session fee: (a) for an individual—has the meaning given by subclause 2(2) of Schedule 2; and (b) for an approved provider—has the meaning given by subclause 9(2) of Schedule 2. 8 Subsection 3(1) (definition of lower income threshold) Repeal the definition, substitute: lower income threshold has the meaning given by subclause 3(4) of Schedule 2. 9 Subsection 3(1) Insert: low income result has the meaning given by clause 13 of Schedule 2. Minister's rules has the meaning given by subsection 85GB(1). Minister's rules result has the meaning given by clause 14 of Schedule 2. 10 Subsection 3(1) Repeal the following definitions: (a) definition of non‑standard hours family day care; (b) definition of non‑standard hours in‑home care. 11 Subsection 3(1) (definition of paid work) Repeal the definition, substitute: paid work (other than in paragraph 12(2)(a) of Schedule 2) has the meaning given by section 3B. 12 Subsection 3(1) Repeal the following definitions: (a) definition of part‑time family day care; (b) definition of part‑time in‑home care. 13 Subsection 3(1) Insert: provide, in relation to a session of care, has the meaning given by section 10. 14 Subsection 3(1) (paragraph (b) of the definition of receiving) Omit "for the purpose of construing references to a person receiving a social security pension or social security benefit that are references in sections 32AI, 50S and 50T of the Family Assistance Administration Act and clauses 1, 28B and 38L of Schedule 1, and in clause 7 of Schedule 2, to this Act:", substitute "for the purposes of a reference in section 85CJ of this Act or clause 1, 28B or 38L of Schedule 1 to this Act, or in section 32AI of the Family Assistance Administration Act, to a person receiving a social security pension or social security benefit:". 15 Subsection 3(1) Insert: recognised activity has the meaning given by subclause 12(2) of Schedule 2. recognised activity result has the meaning given by subclause 12(1) of Schedule 2. 16 Subsection 3(1) Repeal the following definitions: (a) definition of recognised study commitments; (b) definition of recognised training commitments; (c) definition of recognised work or work related commitments. 17 Subsection 3(1) (definition of regular care child) Repeal the definition, substitute: regular care child, of an individual (the adult), means an individual: (a) who would be an FTB child of the adult but for the operation of section 25 (adult's percentage of care for the child during a care period is less than 35%); and (b) for whom the adult has a percentage of care during a care period that is at least 14%. Note: See also section 25A. 18 Subsection 3(1) Insert: reimbursement fringe benefit has the meaning given by subclause 2(5) of Schedule 2. 19 Subsection 3(1) Repeal the following definitions: (a) definition of satisfies the work/training/study test; (b) definition of school child; (c) definition of school holiday session. 20 Subsection 3(1) Insert: second income threshold has the meaning given by subclause 3(4) of Schedule 2. Secretary's rules has the meaning given by subsection 85GB(2). 21 Subsection 3(1) Repeal the following definitions: (a) definition of standard hours family day care; (b) definition of standard hours in‑home care. 22 Subsection 3(1) Insert: State/Territory child welfare law has the meaning given by subsection 85ED(2). third income threshold has the meaning given by subclause 3(4) of Schedule 2. transition to work payment has the meaning given by subsection 85CK(3). 23 Subsection 3(1) (definition of upper income threshold) Repeal the definition, substitute: upper income threshold has the meaning given by subclause 3(4) of Schedule 2. 24 Subsection 3(1) (definition of week) Omit "benefit and child care rebate", substitute "subsidy and additional child care subsidy". 25 Subsection 3(1) (definition of week concerned) Repeal the definition. 26 Subsections 3(5) and (6) Repeal the subsections, substitute: (6) A week, for the purposes of child care subsidy and additional child care subsidy, begins on a Monday. 27 Subsection 3AA(1) Repeal the subsection, substitute: Scope (1) This section applies for the purposes of a reference in section 85CJ or 85CK of this Act, or clause 1, 28B or 38L of Schedule 1 to this Act, to a person receiving payments (affected schooling requirement payments) covered by subsection (2). 28 Subsection 3B(1) Omit "paragraph 15(1)(a) or section 17A", substitute "paragraph 12(2)(a) of Schedule 2". 29 Subsection 3B(1) (note) Omit "paragraph 15(1)(a) and section 17A", substitute "paragraph 12(2)(a) of Schedule 2". 30 Subsection 6(1) Repeal the subsection, substitute: (1) This section states when the child of an individual (the adult) meets the immunisation requirements for the purposes of determining: (a) whether the adult is eligible for child care subsidy under Division 2 of Part 4A; or (b) whether an approved provider is eligible for ACCS (child wellbeing) for sessions of care provided to the child. 31 Subsection 8(1) Repeal the subsection, substitute: (1) The Secretary may, in accordance with the Minister's rules, determine: (a) that an individual who is not an Australian resident is taken to be an Australian resident for the purposes of Division 2 of Part 4A (eligibility for CCS); and (b) if the determination is for a period—the period in respect of which the person is taken to be an Australian resident. 32 Subsections 8(3) and (4) Repeal the subsections, substitute: (3) Minister's rules made for the purposes of subsection (1) may prescribe matters to which the Secretary must have regard in making determinations under subsection (1), including time limits for periods referred to in paragraph (1)(b). 33 Sections 10 to 18 Repeal the sections, substitute: 10 When a session of care is provided Basic rule about when a session of care is provided (1) For the purposes of this Act and the Family Assistance Administration Act, a child care service provides a session of care to a child if: (a) the child is enrolled for care by the service and the child attends the session of care or any part of it; or (b) if the child does not attend any part of the session of care—the service is taken to have provided the session of care to the child under subsection (2) or (3). Note: Enrolled is defined in section 200B of the Family Assistance Administration Act. Up to 42 absences (2) A child care service is taken to have provided a session of care to a child on a day in a financial year if: (a) had the child attended the session of care, one or more of the hours in the session would have been taken into account in accordance with paragraph 4(1)(a) of Schedule 2; and (b) the day is: (i) a day on which the child is enrolled for care by the service; and (ii) after the day the child first attended a session of care provided by the service; and (iii) before the day the service permanently ceased providing care to the child; and (iv) not a day prescribed by the Minister's rules; and (c) there have been no more than 41 days in the financial year on which an approved child care service is taken to have provided a session of care to the child under this subsection. More than 42 absences (3) A child care service is taken to have provided a session of care to a child on a day in a financial year if: (a) there have already been 42 days in the financial year on which an approved child care service is taken to have provided a session of care to the child under subsection (2); and (b) had the child attended the session of care, one or more of the hours in the session would have been taken into account in accordance with paragraph 4(1)(a) of Schedule 2; and (c) the day is: (i) a day on which the child is enrolled for care by the service; and (ii) after the day the child first attended a session of care provided by the service; and (iii) before the day the service permanently ceased providing care to the child; and (iv) not a day prescribed by the Minister's rules; and (d) the absence is for a reason specified in subsection (4); and (e) if the absence is for an illness referred to in paragraph (4)(a) or (b)—the service has been given a certificate that was issued by a medical practitioner in relation to the illness. (4) For the purposes of paragraph (3)(d), the reasons are the following: (a) the child is ill; (b) any of the following persons is ill: (i) the individual in whose care the child is; (ii) the partner of the individual in whose care the child is; (iii) an individual with whom the child lives; (c) the child is attending preschool; (d) alternative care arrangements have been made for the child on a pupil‑free day; (e) a reason prescribed by the Minister's rules. (5) If a service has permanently ceased providing care to a child, the service is taken to have done so on the day the child last attended a session of care provided by the service. 34 Part 3 (heading) Repeal the heading, substitute: Part 3—Eligibility for family assistance (other than child care subsidy and additional child care subsidy) 35 Divisions 4 and 5 of Part 3 Repeal the Divisions. 36 Subsection 57GI(1) (note 2) Omit "benefit or child care rebate", substitute "subsidy or additional child care subsidy". 37 Section 57GQ Repeal the section, substitute: 57GQ This Division does not apply to child care subsidy or additional child care subsidy This Division does not apply in relation to child care subsidy or additional child care subsidy. 38 Part 4 (heading) Repeal the heading, substitute: Part 4—Rate of family assistance (other than child care subsidy and additional child care subsidy) 39 Divisions 4 and 4A of Part 4 Repeal the Divisions. 40 After Part 4 Insert: Part 4A—Child care subsidy Division 1—Introduction 85AA Simplified outline of this Part An individual whose child is attending a child care service may be eligible for child care subsidy (CCS) in relation to the fees charged by the service. In some circumstances, the individual may be eligible for additional child care subsidy (ACCS) instead. The child care service must be approved and the individual must meet the eligibility criteria for CCS or ACCS. Generally, for CCS, the eligibility criteria relate to the child's relationship to the individual, the child's age and immunisation status and the individual's residency status. For ACCS, the individual must be eligible for CCS and meet some additional criteria. The approved provider of a child care service may be eligible for ACCS (child wellbeing) (relating to a child at risk of serious abuse or neglect) when there is no eligible individual, if the service is approved and certain additional criteria are met. 85AB Constitutional basis (1) Without limitation, the provisions of this Act and the Family Assistance Administration Act in relation to child care subsidy and additional child care subsidy (including provisions in relation to approved providers) rely on: (a) the Commonwealth's legislative powers under paragraphs 51(xxiiiA), (xxix) and (xxxix) of the Constitution; and (b) any implied legislative powers of the Commonwealth. (2) For the purposes of reliance on paragraph 51(xxix) of the Constitution and without limitation, the provisions of this Act and the Family Assistance Administration Act in relation to child care subsidy and additional child care subsidy (including provisions in relation to approved providers) are intended to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989. Note: The Convention on the Rights of the Child is in Australian Treaty Series 1991 No. 4 ([1991] ATS 4) and could in 2017 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au). Division 2—Eligibility for child care subsidy 85BA Eligibility for CCS (1) An individual is eligible for CCS for a session of care provided by an approved child care service to a child if: (a) at the time the session of care is provided: (i) the child is an FTB child, or a regular care child, of the individual or the individual's partner; and (ii) the child is 13 or under and does not attend secondary school, or the requirements covered by subsection (2) are satisfied; and (iii) the child meets the immunisation requirements in section 6; and (iv) the individual, or the individual's partner, meets the residency requirements in section 85BB; and (b) the individual, or the individual's partner, has incurred a liability to pay for the session of care under a complying written arrangement; and (c) the session of care: (i) is provided in Australia; and (ii) is not provided as part of the compulsory education program in the State or Territory where the care is provided; and (iii) is not provided in circumstances prescribed by the Minister's rules; and (d) Division 5 does not prevent the individual being eligible for CCS for the session of care. Note: Complying written arrangement is defined in subsection 200B(3) of the Family Assistance Administration Act. (2) For the purposes of subparagraph (1)(a)(ii), the requirements covered by this subsection are that: (a) the child is a member of a class prescribed by the Minister's rules; and (b) the individual and the approved child care service satisfy any conditions prescribed by the Minister's rules in relation to the child. 85BB Residency requirements (1) For the purposes of subparagraph 85BA(1)(a)(iv), an individual or the individual's partner meets the residency requirements at a time if, at that time, the individual or partner: (a) is an Australian resident; or (b) is a special category visa holder residing in Australia; or (c) satisfies subsection (2) of this section; or (d) is undertaking a course of study in Australia and receiving financial assistance directly from the Commonwealth for the purpose of undertaking that study. (2) The individual or the individual's partner satisfies this subsection if the individual or partner: (a) is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act 1991; and (b) is either in Australia or temporarily absent from Australia for no more than 6 weeks on an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act. Division 3—Eligibility for additional child care subsidy Subdivision A—Eligibility for ACCS (child wellbeing) 85CA Eligibility for ACCS (child wellbeing) Eligibility of individual (1) An individual is eligible for ACCS for a session of care provided by an approved child care service to a child if: (a) the individual is eligible for CCS for the session of care; and (b) either of the following is in effect in relation to the child for the week in which the session of care is provided: (i) a certificate given by the approved provider of the service under section 85CB; (ii) a determination made by the Secretary under section 85CE; and (c) Division 5 does not prevent the individual being eligible for ACCS (child wellbeing) for the session of care. Eligibility of approved provider (2) The approved provider of an approved child care service is eligible for ACCS for a session of care provided by the service to a child if: (a) either of the following is in effect in relation to the child for the week in which the session of care is provided: (i) a certificate given by the provider under section 85CB; (ii) a determination made by the Secretary under section 85CE; and (b) at the time the session of care is provided: (i) the provider is not able to identify an individual who is eligible for ACCS (child wellbeing) for the session of care; and (ii) the child is 13 or under and does not attend secondary school, or the requirements covered by subsection (3) are satisfied; and (iii) the child meets the immunisation requirements in section 6; and (c) the session: (i) is provided in Australia; and (ii) is not provided as part of the compulsory education program in the State or Territory where the care is provided; and (iii) is not provided in circumstances prescribed by Minister's rules made for the purposes of subparagraph 85BA(1)(c)(iii); and (d) Division 5 does not prevent the provider being eligible for ACCS (child wellbeing) for the session of care. (3) For the purposes of subparagraph (2)(b)(ii), the requirements covered by this subsection are that: (a) the child is a member of a class prescribed by the Minister's rules; and (b) the approved child care service satisfies any conditions prescribed by the Minister's rules in relation to the child. Child at risk of serious abuse or neglect (4) The Minister's rules may prescribe circumstances in which a child is or is not taken to be at risk of serious abuse or neglect. 85CB Certification for ACCS (child wellbeing) (1) The approved provider of an approved child care service may, if it considers that a child is or was at risk of serious abuse or neglect on a day (an at risk day), give the Secretary a certificate to that effect. Note: If the provider gives a certificate under this section, it must give notice to an appropriate State/Territory body in accordance with section 204K of the Family Assistance Administration Act. (2) The certificate must: (a) be given in a form and manner approved by the Secretary; and (b) contain the information, and be accompanied by the documents, required by the Secretary; and (c) specify the day it takes effect (which must be the Monday of a week that includes an at risk day and cannot be more than 28 days before the certificate is given); and (d) specify the whole weeks for which it has effect (which must be weeks that include an at risk day); and (e) identify the service to which, and the child to whom, it relates; and (f) include any other matters prescribed by the Secretary's rules. (3) A certificate given by an approved provider does not take effect if the certificate would have the effect that, in any period of 12 months, certificates given by the provider in relation to a particular child and a particular service would be in effect for more than 6 weeks (disregarding any days on which the provider's approval is suspended, or suspended in respect of the service). (4) A certificate given by an approved provider does not take effect if the certificate would have the result that, on any particular day during the first week in which the certificate takes effect, certificates given by the provider, together with any determinations made on application by the provider under section 85CE, would be in effect in relation to more than the following percentage of children for whom the service is providing care that day: (a) 50%; (b) if the Secretary's rules prescribe a different percentage and paragraph (c) does not apply—the prescribed percentage; (c) if the Secretary determines that it is appropriate to the circumstances of the service, and makes a written determination to that effect that applies on the day—the percentage specified in the determination. (5) A certificate given by an approved provider does not take effect if a circumstance prescribed by the Minister's rules exists in relation to any or all of the provider, the service or the child. (6) A determination made under paragraph (4)(c) is not a legislative instrument. 85CC Cancellation of certificate by approved provider (1) If: (a) a certificate given by an approved provider under section 85CB in relation to a child is in effect for a week; and (b) the provider considers that the child is not at any risk of serious abuse or neglect during the week; and (c) the time for varying, substituting or withdrawing the report under subsection 204B(6) (requirement to report about children for whom care is provided) of the Family Assistance Administration Act for the first week for which the certificate has effect has not expired; the provider must, by written notice given to the Secretary, cancel the certificate. (2) If the provider cancels a certificate, the certificate is taken never to have been in effect. (3) The provider may cancel a certificate even if the certificate has ceased to have effect. (4) Despite paragraph 85CB(2)(c), if: (a) the provider cancels a certificate in relation to a child under this section (the original certificate); and (b) the provider then gives a certificate under section 85CB in relation to the child for one or more weeks for which the original certificate was specified to have effect (the replacement certificate); the replacement certificate may take effect more than 28 days before the replacement certificate is given but no earlier than the day the original certificate took effect. 85CD Variation and cancellation of certificates by Secretary (1) If: (a) a certificate given by an approved provider under section 85CB in relation to a child is in effect for a week; and (b) the Secretary considers that the child is not at any risk of serious abuse or neglect during the week; the Secretary may, by written notice given to the provider, cancel or vary the certificate so that the certificate is not in effect for the week. (2) If the Secretary cancels the certificate, the certificate ceases to have effect on the day specified in the notice (which must be a Monday and may be earlier than the day the notice is given). (3) If the Secretary varies the certificate, the certificate is varied as specified in the notice with effect from the day specified in the notice (which must be a Monday and may be earlier than the day the notice is given). (4) The Secretary may cancel or vary a certificate even if the certificate has ceased to have effect. 85CE Determination for ACCS (child wellbeing) (1) An approved provider may apply to the Secretary for a determination under this section if the provider: (a) considers that a child is or was at risk of serious abuse or neglect at the time an approved child care service of the provider provides or provided a session of care to the child; and (b) is unable to give a certificate because of subsection 85CB(3) or (4). Note: Before making the application, the provider must give notice to an appropriate State/Territory body in accordance with section 204K of the Family Assistance Administration Act. (2) The application must: (a) be made in a form and manner approved by the Secretary; and (b) contain the information, and be accompanied by the documents, required by the Secretary. (3) The Secretary must, no later than 28 days after the day the application is made: (a) if satisfied that the child is or was at risk of serious abuse or neglect on a day (an at risk day)—make a written determination to that effect; and (b) otherwise—refuse the application. Note: Persons whose interests are affected by the decision must be notified of the decision and of their right to have it reviewed (see section 27A of the AAT Act). (4) If the Secretary neither makes a determination nor refuses the application by the end of the 28 days after the day the application was made, the Secretary is taken at that time to have refused the application. Subsection 27A(1) of the AAT Act does not apply to such a refusal. Note: This means the Secretary is not required to give notice of the refusal. (5) A determination made under this section must: (a) specify the day it takes effect, which must be the Monday of a week that includes an at risk day and cannot be more than 28 days before the application was made; and (b) specify the whole weeks for which it has effect, which: (i) must be weeks that include an at risk day; and (ii) cannot exceed 13 weeks; and (c) identify the child to whom it relates. (6) If: (a) a determination made under this section is in effect in relation to a child; and (b) the Secretary is satisfied that the child will still be at risk of serious abuse or neglect after the determination ceases to have effect; the Secretary may make a written determination accordingly to take effect on the Monday immediately after the earlier determination ceases to have effect. (7) A determination made under this section is not a legislative instrument. 85CF Variation and revocation of determinations (1) If: (a) a determination made under section 85CE in relation to a child is in effect for a week; and (b) the Secretary considers that the child is not at any risk of serious abuse or neglect during the week; the Secretary may, by written notice given in accordance with subsection (2), cancel or vary the determination so that the determination is not in effect for the week. (2) The Secretary must give the written notice to the approved provider that made the application for the determination, or, if there has been more than one consecutive such determination, for the first determination in the series. Note: Persons whose interests are affected by the decision must be notified of the decision and of their right to have it reviewed (see section 27A of the AAT Act). (3) If the Secretary revokes a determination, the determination ceases to have effect on the day specified in the notice (which must be a Monday and may be earlier than the day the notice is given). (4) If the Secretary varies a determination, the determination is varied as specified in the notice with effect from the day specified in the notice (which must be a Monday and may be earlier than the day the notice is given). (5) The Secretary may vary or revoke a determination even if the determination has ceased to have effect. Subdivision B—Eligibility for ACCS (temporary financial hardship) 85CG Eligibility for ACCS (temporary financial hardship) (1) An individual is eligible for ACCS for a session of care provided by an approved child care service to a child if: (a) the individual is eligible for CCS for the session of care; and (b) a determination of temporary financial hardship made by the Secretary under section 85CH is in effect in relation to the individual for the week in which the session of care is provided; and (c) Division 5 does not prevent the individual being eligible for ACCS (temporary financial hardship) for the session. Temporary financial hardship (2) The Minister's rules may prescribe circumstances in which an individual is taken to be experiencing temporary financial hardship. 85CH Determination of temporary financial hardship Determinations on own initiative or on application (1) The Secretary may make a determination that an individual is experiencing temporary financial hardship: (a) on application by the individual in accordance with this section; or (b) on the Secretary's own initiative, if the Secretary is satisfied that a circumstance prescribed by the Minister's rules for the purposes of subsection 85CG(2) (temporary financial hardship) exists in relation to the individual. Applications (2) An individual may apply to the Secretary for a determination under this section, if the individual considers that a circumstance prescribed by the Minister's rules for the purposes of subsection 85CG(2) (temporary financial hardship) exists in relation to the individual. (3) The application must: (a) be made in a form and manner approved by the Secretary; and (b) contain the information, and be accompanied by the documents, required by the Secretary. (4) The Secretary must, no later than 28 days after the day the application is made: (a) if satisfied that a circumstance prescribed by the Minister's rules for the purposes of subsection 85CG(2) (temporary financial hardship) exists in relation to the individual—make the determination referred to in subsection (1); and (b) otherwise—refuse the application. Note: Persons whose interests are affected by the decision must be notified of the decision and of their right to have it reviewed (see section 27A of the AAT Act). (5) If the Secretary neither makes a determination nor refuses the application by the end of the 28 days after the day the application was made, the Secretary is taken at that time to have refused the application. Subsection 27A(1) of the AAT Act does not apply to such a refusal. Note: This means the Secretary is not required to give notice of the refusal. Content etc. of determinations (6) A determination made under this section must: (a) specify the day it takes effect, which must be a Monday and cannot be more than 28 days before: (i) if made on application—the application was made; or (ii) otherwise—the determination was made; and (b) specify the whole weeks for which it has effect; and (c) identify the child to whom it relates; and (d) identify the individual concerned and the reason why the circumstance causing the temporary financial hardship exists in relation to the individual. (7) A determination does not take effect if the determination would have the result that determinations made under this section would be in effect in relation to a particular child and a particular individual, and for a particular reason, for more than 13 weeks. (8) A determination made under this section is not a legislative instrument. 85CI Revocation of determinations (1) If: (a) a determination made under section 85CH in relation to an individual is in effect for a week; and (b) the Secretary considers that a circumstance prescribed by the Minister's rules for the purposes of subsection 85CG(2) (temporary financial hardship) does not exist in relation to the individual during the week; the Secretary may, by written notice given to the individual, cancel or vary the determination so that the determination is not in effect for the week. Note: Persons whose interests are affected by the decision must be notified of the decision and of their right to have it reviewed (see section 27A of the AAT Act). (2) If the Secretary revokes a determination, the determination ceases to have effect on the day specified in the notice (which must be a Monday and may be earlier than the day the notice is given). (3) If the Secretary varies a determination, the determination is varied as specified in the notice with effect from the day specified in the notice (which must be a Monday and may be earlier than the day the notice is given). (4) The Secretary may vary or revoke a determination even if the determination has ceased to be in effect. Subdivision C—Eligibility for ACCS (grandparent) 85CJ Eligibility for ACCS (grandparent) (1) An individual is eligible for ACCS for a session of care provided by an approved child care service to a child if: (a) the individual is eligible for CCS for the session of care; and (b) the individual, or the individual's partner, is the grandparent or great‑grandparent of the child; and (c) at the start of the CCS fortnight in which the session of care is provided, the individual or the individual's partner is the principal carer of the child within the meaning of subsection (2); and (d) at the start of the CCS fortnight in which the session of care is provided, the individual, or the individual's partner, is receiving: (i) a social security pension; or (ii) a social security benefit; or (iii) a service pension; or (iv) an income support supplement under Part IIIA of the Veterans' Entitlements Act 1986; and (e) Division 5 does not prevent the individual being eligible for ACCS (grandparent) for the session. (2) For the purposes of paragraph (1)(c), the individual or the individual's partner is the principal carer of the child if the individual or partner: (a) provides all or at least 65% of ongoing daily care for the child; and (b) has substantial autonomy for the day‑to‑day decisions about the child's care, welfare and development. (3) In determining, for the purposes of this section, whether an individual is a grandparent or great‑grandparent of another person, treat the following relationships as if they were biological child‑parent relationships: (a) the relationship between an adopted child and his or her adoptive parent; (b) the relationship between a step‑child and his or her step‑parent; (c) the relationship between a relationship child and his or her relationship parent. (4) In this section: adoptive parent, of a person (the child), means the person who adopted the child under a law of any place (whether in Australia or not) relating to the adoption of children. step‑parent, of a person (the child), means the person who: (a) is the current or former partner of the biological parent, adoptive parent or relationship parent of the child; and (b) is not the biological parent, adoptive parent or relationship parent of the child. Subdivision D—Eligibility for ACCS (transition to work) 85CK Eligibility for ACCS (transition to work) Eligibility of individual receiving transition to work payment (1) An individual is eligible for ACCS for a session of care provided by an approved child care service to a child if: (a) the individual is eligible for CCS for the session of care; and (b) at the start of the CCS fortnight in which the session of care is provided: (i) the individual is receiving (within the meaning of subsections 23(2) and (4) of the Social Security Act 1991) a transition to work payment referred to in subsection (3) of this section; and (ii) if the transition to work payment is referred to in paragraph (3)(a)—an employment pathway plan within the meaning of the Social Security Act 1991, or a participation plan under section 94B of that Act, is in effect in relation to the individual; and (c) any requirements prescribed by the Minister's rules are met; and (d) Division 5 does not prevent the individual being eligible for ACCS (transition to work) for the session. Eligibility of individual who ceased receiving transition to work payment fewer than 12 weeks ago (2) An individual is eligible for ACCS for a session of care provided by an approved child care service to a child if: (a) the individual is eligible for CCS for the session of care; and (b) the individual stopped receiving (within the meaning of subsections 23(2) and (4) of the Social Security Act 1991) a transition to work payment referred to in subsection (3) of this section less than 12 weeks before the start of the CCS fortnight in which the session of care is provided; and (c) any requirements prescribed by the Minister's rules are met; and (d) Division 5 does not prevent the individual being eligible for ACCS (transition to work) for the session. Definition of transition to work payment (3) Each of the following is a transition to work payment: (a) the following payments made under the social security law: (i) parenting payment; (ii) newstart allowance; (iii) disability support pension; (iv) youth allowance; (b) a payment (whether or not made under the social security law) prescribed by the Minister's rules. Division 4—Eligibility in substitution for an individual who has died 85DA Eligibility for child care subsidy or additional child care subsidy in substitution for individual who has died If: (a) an individual is eligible for CCS or ACCS; and (b) the individual dies; and (c) an amount of CCS or ACCS for which the individual was eligible has not been paid; and (d) another individual (the substitute) makes a claim under Part 3A of the Family Assistance Administration Act for CCS in substitution for the individual who has died; and (e) the Secretary considers that the substitute ought to be eligible for so much of the unpaid amount as relates to sessions of care provided after the start of the income year before the income year in which the individual died; the substitute is eligible for that much of the unpaid amount of CCS or ACCS. Division 5—Limitations on eligibility for child care subsidy and additional child care subsidy 85EA Only one individual eligible at a time (1) If, apart from this section, more than one individual would be eligible for CCS for the same session of care provided to a child, only the individual determined under subsection (2) is eligible for the CCS. (2) For the purposes of subsection (1), the Secretary may, in accordance with any Minister's rules, determine in writing the individual eligible for the CCS for the session of care provided to the child. (3) A determination made under subsection (2) is not a legislative instrument. 85EB Only eligible for one kind of ACCS at a time If, apart from this section, an individual would be eligible for ACCS under more than one provision of Division 3 for the same session of care provided to a child, then the individual is only eligible for: (a) ACCS (child wellbeing); or (b) if the individual is not eligible for ACCS (child wellbeing)—ACCS (grandparent); or (c) if the individual is not eligible for ACCS (child wellbeing) or ACCS (grandparent)—ACCS (temporary financial hardship). Note: An individual who would otherwise be eligible for ACCS (transition to work), as well as for one or more other kinds of ACCS, is instead eligible for the other kind, or one of the other kinds, of ACCS according to the priority set out in this section. 85EC Only one individual eligible in substitution for individual who has died If an individual is eligible for an amount of CCS or ACCS because of section 85DA (eligibility in substitution for individual who has died), no other individual and no approved provider is or can become eligible for CCS or ACCS that is part of the amount. 85ED No eligibility for child who is in care of State or Territory or member of prescribed class (1) An individual is not eligible for CCS or ACCS, and an approved provider is not eligible for ACCS (child wellbeing), for a session of care provided to a child if the child is: (a) under the care (however described) of a person (other than a foster parent) under a State/Territory child welfare law; or (b) a member of a class prescribed by the Minister's rules. (2) A State/Territory child welfare law is: (a) a law of a State or Territory which is prescribed by the Minister's rules; or (b) if the Minister's rules do not prescribe a law for a State or Territory—a law of the State or Territory that relates to the welfare of children. 85EE Maximum period of eligibility for individual who is absent from Australia (1) If an individual leaves Australia, the maximum period for which the individual can be eligible for CCS or ACCS during that absence from Australia is the period of 6 weeks beginning on the first day of that absence. (2) If: (a) an individual is eligible for CCS or ACCS while the individual is absent from Australia; and (b) the individual then ceases to be eligible for CCS or ACCS because of the application of subsection (1) or a previous application of this subsection; and (c) the individual returns to Australia; and (d) the individual leaves Australia again less than 6 weeks after returning to Australia; the individual is not eligible for CCS or ACCS at any time during the absence from Australia referred to in paragraph (d). (3) The Secretary may extend the 6 week period (the initial period) referred to in subsection (1), to a period of no more than 3 years, if the Secretary is satisfied that the individual is unable to return to Australia within the initial period because of any of the following events: (a) a serious accident involving the individual or a family member of the individual; (b) a serious illness of the individual or a family member of the individual; (c) the hospitalisation of the individual or a family member of the individual; (d) the death of a family member of the individual; (e) the individual's involvement in custody proceedings in the country in which the individual is located; (f) a legal requirement for the individual to remain outside Australia in connection with criminal proceedings (other than criminal proceedings in respect of a crime alleged to have been committed by the individual); (g) robbery or serious crime committed against the individual or a family member of the individual; (h) a natural disaster in the country in which the individual is located; (i) political or social unrest in the country in which the individual is located; (j) industrial action in the country in which the individual is located; (k) a war in the country in which the individual is located. (4) The Secretary must not extend the initial period under subsection (3) unless: (a) the event occurred or began during the initial period; and (b) if the event is political or social unrest, industrial action or war—the individual is not willingly involved in, or willingly participating in, the event. (5) The Secretary may extend the 6 week period referred to in subsection (1), to a period of no more than 3 years, if the Secretary is satisfied that, under the Medical Treatment Overseas Program administered by the Minister who administers the National Health Act 1953, financial assistance is payable in respect of the absence from Australia of the individual. (6) The Secretary may extend the 6 week period referred to in subsection (1), to a period of no more than 3 years, if the Secretary is satisfied that the individual mentioned in the subsection is unable to return to Australia within the 6 week period because the individual is: (a) deployed outside Australia as a member of the Defence Force, under conditions specified in a determination made under the Defence Act 1903 that relates to such deployment; or (b) deployed outside Australia, for the purpose of capacity‑building or peacekeeping functions, as: (i) a member or a special member of the Australian Federal Police; or (ii) a protective service officer within the meaning of the Australian Federal Police Act 1979. Division 6—Amount of child care subsidy and additional child care subsidy 85FA Amount of child care subsidy If an individual is eligible for child care subsidy for at least one session of care provided by an approved child care service to a child in a week, the amount of child care subsidy for the individual for the week for the child is worked out under Part 1 of Schedule 2. 85FB Amount of ACCS (child wellbeing), ACCS (temporary financial hardship) or ACCS (grandparent) for an individual If an individual is eligible for ACCS (child wellbeing), ACCS (temporary financial hardship) or ACCS (grandparent) for at least one session of care provided by an approved child care service to a child in a week, the amount of additional child care subsidy for the individual for the week for the child is worked out under Part 2 of Schedule 2. 85FC Amount of ACCS (transition to work) If an individual is eligible for ACCS (transition to work) for at least one session of care provided by an approved child care service to a child in a week, the amount of additional child care subsidy for the individual for the week for the child is worked out under Part 3 of Schedule 2. 85FD Amount of ACCS (child wellbeing) for an approved provider If an approved provider is eligible for ACCS (child wellbeing) for at least one session of care provided by an approved child care service of the provider to a child in a week, the amount of additional child care subsidy for the provider for the week for the child is worked out under Part 4 of Schedule 2. Division 7—Miscellaneous 85GA Funding agreements (1) The Secretary may, on behalf of the Commonwealth, enter into, vary and administer written agreements with a person under which the Commonwealth makes one or more grants of money to the person for purposes that are related to both: (a) child care; and (b) either or both of the following: (i) the provision of child endowment or family allowances within the meaning of paragraph 51(xxiiiA) of the Constitution; (ii) giving effect to Australia's obligations under the Convention on the Rights of the Child done at New York on 20 November 1989 and, in particular, under articles 2, 3, 18 or 23 of the Convention. Note: The Convention on the Rights of the Child is in Australian Treaty Series 1991 No. 4 ([1991] ATS 4) and could in 2017 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au). (2) A grant under this section is payable to a person: (a) at such time as is specified in the agreement; and (b) in full or in such instalments as are specified in the agreement. (3) The Minister's rules may specify requirements with which the Secretary must comply in exercising powers under this section. 85GB Minister's and Secretary's rules (1) The Minister may, by legislative instrument, make rules (the Minister's rules) prescribing matters: (a) required or permitted by this Act or by the Family Assistance Administration Act to be prescribed by the Minister's rules; or (b) necessary or convenient to be prescribed for carrying out or giving effect to any or all of the following: (i) this Part or Schedule 2; (ii) Part 8 or 8A of the Family Assistance Administration Act; (iii) any other provision of the Family Assistance Administration Act in relation to child care subsidy or additional child care subsidy. Note: The Minister cannot delegate this power (there is no power to delegate Minister's powers or functions under this Act). (2) The Secretary may, by legislative instrument, make rules (the Secretary's rules) prescribing matters: (a) required or permitted by this Act or by the Family Assistance Administration Act to be prescribed by the Secretary's rules; or (b) necessary or convenient to be prescribed for carrying out or giving effect to any or all of the following: (i) this Part or Schedule 2; (ii) Part 8 or 8A of the Family Assistance Administration Act; (iii) any other provision of the Family Assistance Administration Act in relation to child care subsidy or additional child care subsidy. Note: The Secretary cannot delegate this power (see subsection 221(1) of the Family Assistance Administration Act). (3) To avoid doubt, the Minister's rules and the Secretary's rules may not do the following: (a) create an offence or civil penalty; (b) provide powers of: (i) arrest or detention; or (ii) entry, search or seizure; (c) impose a tax; (d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act; (e) directly amend the text of this Act. (4) Secretary's rules that are inconsistent with Minister's rules have no effect to the extent of the inconsistency, but Secretary's rules are taken to be consistent with Minister's rules to the extent that the Secretary's rules are capable of operating concurrently with the Minister's rules. (5) Minister's rules and Secretary's rules that are inconsistent with regulations made under section 235 of the Family Assistance Administration Act have no effect to the extent of the inconsistency, but Minister's rules and Secretary's rules are taken to be consistent with those regulations to the extent they are capable of operating concurrently with those regulations. 41 Schedule 2 Repeal the Schedule, substitute: Schedule 2—Amounts of child care subsidy and additional child care subsidy Note: See Division 6 of Part 4A. Part 1—Amount of child care subsidy 1 Amount of child care subsidy (1) If an individual is eligible for CCS for at least one session of care provided by an approved child care service to a child in a week, work out the amount of child care subsidy for the individual for the week, for sessions of care provided by the service to the child, using the following method statement. Method statement Step 1. Work out the individual's activity test result, in relation to the child, for the CCS fortnight that includes the week (see clause 11 of this Schedule). If the activity test result is zero, the amount of child care subsidy for the individual for the week, for the sessions of care provided by the service to the child, is nil. Otherwise, go to step 2. Step 2. Work out whether the annual cap applies to the individual for the income year in which the CCS fortnight starts (see subclause (2)). If the annual cap: (a) applies; and (b) has already been reached for the child for the income year (see subclause (3)); the amount of child care subsidy for the individual for the week, for the sessions of care provided by the service to the child, is nil. Otherwise, go to step 3. Step 3. Identify all the sessions of care: (a) provided by the service to the child in the week; and (b) for which the individual is eligible for CCS. Step 4. Work out the hourly rate of CCS for the individual for each of those sessions of care (see clause 2). If the applicable percentage is 0% for each of those sessions of care, the amount of child care subsidy for the individual for the week, for those sessions, is nil. Otherwise, go to step 5. Step 5. Work out the activity‑tested amount of CCS for those sessions of care (see clause 4). Step 6. The amount of CCS for the individual for the week, for the sessions of care identified in step 3, is: (a) the activity‑tested amount; or (b) if the annual cap applies to the individual for the income year in which the CCS fortnight that includes the week starts, and the difference between the annual cap and the total previous CCS (see subclause (3)) is less than the activity‑tested amount—that difference. Note: An individual who is receiving CCS by fee reduction might have a lower amount passed on than the amount worked out under this method statement, because of a withholding amount in relation to the payment. See sections 67EB and 201A of the Family Assistance Administration Act. (2) The annual cap of $10,000 applies to an individual for an income year if the adjusted taxable income of the individual for the income year exceeds the amount that is the lower income threshold plus $120,000. Note: The $10,000 amount is indexed under Schedule 4. (3) The annual cap that applies to an individual is reached for a child for an income year if the following amounts (the total previous CCS) together equal the annual cap: (a) CCS the individual is entitled to be paid for sessions of care provided to the child in CCS fortnights starting in the income year; (b) if the individual is a member of a couple for the whole of the income year in which the CCS fortnight starts—CCS the other member of the couple is entitled to be paid for sessions of care provided to the same child in CCS fortnights starting in the income year. 2 Hourly rate of CCS (1) For the purposes of step 4 of the method statement in clause 1, the hourly rate of CCS for the individual, for a session of care provided by the service to the child in the week, is the individual's applicable percentage (see clause 3) of the lower of: (a) the hourly session fee for the individual; and (b) the CCS hourly rate cap for the session; rounded to the nearest cent (rounding 0.5 cents upwards). Note: If the applicable percentage for a session of care is 0% (see table item 6 of subclause 3(1)), the hourly rate of CCS for the individual for the session of care is nil. (2) The hourly session fee for an individual, for a session of care provided to a child, is the amount the individual or the individual's partner is liable to pay for the session of care: (a) divided by the number of hours in the session of care; and (b) reduced by: (i) the hourly rate of any subsidy (other than CCS or ACCS) which the individual benefits from in respect of that session; and (ii) the amount per hour of any reimbursement fringe benefit in respect of the session of care (see subclause (5)). (3) Work out the CCS hourly rate cap for a session of care using the following table. CCS hourly rate cap Item If the session of care is provided by: The CCS hourly rate cap is: 1 a centre‑based day care service $11.55 2 a family day care service $10.70 3 an outside school hours care service $10.10 4 a type of service prescribed by the Minister's rules the dollar amount prescribed by the Minister's rules Note: The dollar amounts referred to in the table are indexed under Schedule 4. (4) The Minister's rules may prescribe criteria for determining by which of the types of service mentioned in the table in subclause (3) any particular session of care is provided. (5) A reimbursement fringe benefit in respect of a session of care is the amount by which an individual or the individual's partner is reimbursed by a person in respect of the individual's or partner's liability to pay for the session of care, if the reimbursement: (a) is a fringe benefit within the meaning of the Fringe Benefits Tax Assessment Act 1986; or (b) would be such a fringe benefit but for paragraph (g) of the definition of fringe benefit in subsection 136(1) of that Act. 3 Applicable percentage (1) An individual's applicable percentage for a session of care provided to a child in a CCS fortnight is determined by the following table. Applicable percentage Item If the individual's adjusted taxable income for the income year in which the CCS fortnight starts is: Then the applicable percentage for the individual is: 1 equal to or below the lower income threshold 85% 2 above the lower income threshold and below the second income threshold see subclause (2) 3 equal to or above the second income threshold and below the third income threshold 50% 4 equal to or above the third income threshold and below the fourth income threshold see subclause (3) 5 equal to or above the fourth income threshold and below the upper income threshold 20% 6 equal to or above the upper income threshold 0% (2) If table item 2 applies, work out the individual's applicable percentage for the session of care using the following formula and rounding the result to 2 decimal places: (3) If table item 4 applies, work out the individual's applicable percentage for the session of care using the following formula and rounding the result to 2 decimal places: (4) In this Act: lower income threshold means $65,710. Note: This amount is indexed under Schedule 4. second income threshold means the lower income threshold plus $105,000. third income threshold means the lower income threshold plus $184,290. fourth income threshold means the lower income threshold plus $274,290. upper income threshold means the lower income threshold plus $284,290. 4 Activity‑tested amount of CCS (1) For the purposes of step 5 of the method statement in clause 1, the activity‑tested amount of CCS, for the sessions of care identified in step 3 of the method statement, is the amount worked out by: (a) for each session of care—multiplying the hourly rate of CCS for the session by the number of hours in the session, up to the lower of: (i) the balance of the activity test result worked out under subclause (2) in relation to the session; and (ii) if the Secretary is satisfied that it is appropriate, for the CCS fortnight, to have regard to an election (if any) made under subclause (3)—the number determined in accordance with the election; and (b) adding the results together. (2) The balance of the activity test result, in relation to a particular session of care, is the individual's activity test result in relation to the child for the CCS fortnight, reduced (but not below zero) by: (a) the number of hours (if any) for which either of the following is entitled to be paid CCS or ACCS for sessions of care provided to the child in the CCS fortnight: (i) the individual; (ii) if the individual was a member of a couple on each day in the CCS fortnight—the individual's partner; and (b) the number of hours in any earlier sessions of care identified in step 3 of the method statement. (3) If a circumstance prescribed by the Minister's rules exists in relation to an individual, the individual may, in a form and manner approved by the Secretary, give the Secretary a written election for the purpo