Part 6—Provisions relating to information
Division 1—Information gathering
153 Application of Division
(1) This Division:
(a) binds the Crown in all its capacities; and
(b) extends to:
(i) acts, omissions, matters and things outside Australia, whether or not in a foreign country; and
(ii) all persons, irrespective of their nationality or citizenship.
(3) This Division does not make the Crown liable to be prosecuted for an offence.
153A Reasonable belief needed to require information, documents or records
The Secretary can only require a person to:
(a) give information; or
(b) produce a document; or
(c) produce records;
under this Division if the Secretary reasonably believes that the person will be able to give the information or produce the document or records.
154 General power to obtain information
(1) The Secretary may require a person to give information, or produce a document, to a specified agency if the Secretary considers that the information or document may be relevant to either or both of the following matters:
(a) whether the person, or any other person, whom the Secretary has determined to be entitled to be paid family assistance is or was eligible for the family assistance, or for family assistance of the amount determined;
(b) whether the person or any other person to whom a payment of family assistance has been made was entitled to the payment.
(2) The Secretary may require a person to:
(a) give information; or
(b) produce a document;
to a specified agency if the Secretary considers that the information or document may be relevant to whether a person who has claimed family assistance, but who has not had the claim determined, is eligible for family assistance.
(3) The Secretary may require a person to:
(a) give information; or
(b) produce a document;
to a specified agency if the Secretary considers that the information or document may be relevant to whether an approved provider is eligible for ACCS (child wellbeing) or the amount of ACCS (child wellbeing) an approved provider is entitled to be paid.
(4) The Secretary may require a person to give information, or produce a document, to a specified agency if the Secretary considers that the information or document may be relevant to:
(a) an application by the person, or any other person, for approval for the purposes of the family assistance law; or
(b) the question of whether an approved provider should continue to be approved; or
(c) an application by the person, or any other person, for the approval of an approved provider to be varied; or
(d) the question of whether a child care service should continue to be approved in respect of the person, or any other person; or
(e) the records that a person is required to keep under section 202B or 202C.
(5) The Secretary may require a person who is required to keep records under section 202B or 202C to produce to a specified agency such of those records as are specified in the notice given to the person under section 158.
(6) The Secretary may require a person to give information, or produce a document or records, to a specified agency if the Secretary considers that the information, document or records may be relevant to an inquiry or investigation into a matter mentioned in subsection (1), (2), (3) or (4).
155 Power to obtain information from a person who owes a debt to the Commonwealth
The Secretary may require a person who owes a debt to the Commonwealth under or as a result of this Act:
(a) to give to a specified agency information that is relevant to the person’s financial situation; or
(b) to produce to a specified agency a document that is relevant to the person’s financial situation; or
(c) if the person’s address changes—to inform a specified agency of the new address within 14 days after the change.
156 Obtaining information about a person who owes a debt to the Commonwealth
The Secretary may require a person to give information, or produce a document, to a specified agency if the Secretary considers the information or document:
(a) would help the specified agency locate another person (the debtor) who owes a debt to the Commonwealth under or as a result of this Act; or
(b) is relevant to the debtor’s financial situation.
157 Obtaining information to verify claims etc.
(1) The Secretary may require a person to give information about a class of persons, to a specified agency for either or both of the following purposes:
(a) to detect cases in which amounts of family assistance have been paid to persons not entitled to them;
(b) to verify the eligibility, entitlement to be paid and amount of the entitlement of persons who have made claims for family assistance.
(2) The information that the Secretary may require about each person in the class of persons is all or any of the following information (but no other information):
(a) full name and any previous name;
(b) address;
(c) sex;
(d) marital status;
(e) date of birth;
(f) date of death;
(g) dates of entries into and departures from Australia;
(h) any payments received by the person from the person given the notice, within the period of 52 weeks before the giving of the notice, and the account number of the account into which any of those payments was paid;
(i) in relation to a course of study being undertaken by the person:
(i) the name of the educational institution that the person is attending;
(ii) the name of any educational institution previously attended by the person;
(iii) the person’s enrolment status;
(iv) the person’s student identification number;
(v) the name of the course;
(vi) the course code;
(vii) the date on which the course started or starts;
(viii) the date on which the course ends;
(ix) the subject or unit code;
(x) the normal full‑time study workload for the course;
(xi) indicators of the person’s workload, including (but not limited to) effective full‑time student units, credit points, contact hours, number of subjects undertaken and number of assignments completed;
(xii) the number of semesters required to complete the course;
(xiii) the date on which the person first attended, or will first attend, the course;
(xiv) the date on which the person last attended, or will last attend, the course;
(xv) whether the person has discontinued the course and, if the person has discontinued the course, the date on which it happened;
(xvi) details of any unapproved absences from the course;
(xvii) the results or grade obtained by the person;
(j) in relation to any employment of the person by the person given the notice:
(i) the date on which the person’s employment started; and
(ii) the date on which the person’s employment ended; and
(iii) the number of hours each week for which the person is employed;
(k) in relation to any other recognised activity (other than as an employee) that the person engages in for the person given the notice—any or all of the following:
(i) the date on which the recognised activity started;
(ii) the date on which the recognised activity ended;
(iii) the number of hours each week in which the person engages in the recognised activity;
(l) in relation to any training of the person by the person given the notice:
(i) the name of the entity providing the training;
(ii) if the person is undertaking a training course—the name of the training course;
(iii) the period required to complete the training;
(iv) the date on which the person’s training started;
(v) the date on which the person’s training ended;
(vi) the number of hours each week for which the person engages in the training.
(3) The Secretary may require information about a particular class of persons, whether or not the Secretary is able to identify any of the persons in that class as being persons:
(a) who have been paid family assistance; or
(b) who are entitled to family assistance; or
(c) who have made claims for family assistance.
(4) Within 13 weeks after information is given in response to a requirement under subsection (1), the Secretary must decide which (if any) of the information is, or is likely to be, relevant to a matter referred to in subsection (1).
(5) If the Secretary decides, within the 13 week period, that some or all of the information given in response to the requirement is not, or is not likely to be, relevant to a matter referred to in subsection (1), the Secretary must ensure that any record of the irrelevant information is destroyed.
(6) If the Secretary has not made a decision under subsection (4) at the end of the 13 week period, the Secretary must ensure that any record of all or any part of the information is destroyed.
157A Obtaining records supporting certificate under section 85CB
The Secretary may require an approved provider that has given the Secretary a certificate under section 85CB (certification for ACCS (child wellbeing)) of the Family Assistance Act to produce any records kept by the provider for the purposes of section 202C in relation to the certificate.
158 Written notice of requirement
(1) A requirement under this Division must be made by written notice given to the person of whom the requirement is made.
(2) The notice:
(a) may be given personally or by post or in any other manner approved by the Secretary; and
(b) must specify:
(ia) a description of the information, document or records to which the requirement relates; and
(i) how the person is to give the information or produce the document or records to which the requirement relates; and
(ii) the period within which the person is to give the information or produce the document or records; and
(iii) the officer (if any) to whom the information is to be given, the document is to be produced or the records are to be produced; and
(iv) that the notice is given under this section.
Note: The notice may describe the information, documents or records by class (see subsection 33(3AB) of the Acts Interpretation Act 1901).
(3) For the purposes of paragraph (2)(b), the period must not end earlier than 14 days after the notice is given, unless the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of the effective administration of the family assistance law, to specify a shorter period.
(4) The notice may require the person to give the information by appearing before a specified officer to answer questions.
(5) If the notice requires the person to appear before an officer, the notice must specify:
(a) a time and place at which the person is to appear; and
(b) that the person may be accompanied by a lawyer.
(6) For the purposes of subsection (5), the time must be at least 14 days after the notice is given, unless the Secretary is satisfied that it is reasonable in the circumstances, for the purposes of the effective administration of the family assistance law, to specify an earlier time.
159 Offence: failure to comply with requirement
(1) A person must not refuse or fail to comply with a requirement under this Division to give information or produce a document or records.
Penalty: Imprisonment for 12 months.
(2) Subsection (1) applies only to the extent to which the person is capable of complying with the requirement.
(3) Subsection (1) does not apply if the person has a reasonable excuse.
(4) Strict liability applies to the element of an offence against subsection (1) that a requirement is a requirement under this Division.
159A Requesting information for the purposes of a care percentage determination under the child support law
The Secretary may request a person:
(a) to give information; or
(b) to produce a document;
to a specified agency if the Secretary considers that the information or document may be relevant to the making or revoking of a determination under Subdivision B or C of Division 4 of Part 5 of the Child Support (Assessment) Act 1989.
159B Self‑incrimination
(1) A person is not excused from giving information, or producing a document or records, under this Division on the ground that the information, or production of the document or records, might tend to incriminate the person or expose the person to a penalty.
(2) However, in the case of an individual:
(a) the information given or document or records produced; and
(b) giving the information or producing the document or records; and
(c) any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or records;
are not admissible in evidence against the individual in any criminal proceedings, other than:
(d) proceedings for an offence against subsection 159(1); or
(e) proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Division; or
(f) proceedings for an offence against Division 145 of the Criminal Code; or
(g) proceedings for an offence against section 177 that relates:
(i) to this Division; and
(ii) to a contravention of section 172 or subsection 173(1), 174(1) or 176(3).
159C Use of information in investigations etc.
Subject to subsection 159B(2), nothing in this Division prevents information given, or a document or records produced, under this Division by a person from being used in:
(a) an inquiry or investigation into a matter; or
(b) criminal proceedings.
160 Relationship with other laws
(1) Nothing contained in a law of a State or a Territory operates to prevent a person from:
(a) giving information; or
(b) producing a document or records; or
(c) giving evidence;
that the person is required to give or produce to an agency for the purposes of the family assistance law.
(2) This Division does not require a person to give information or produce a document or records to the extent that in doing so the person would contravene a law of the Commonwealth (other than a law of a Territory).
Division 1A—Use of tax file numbers
160A Use of tax file numbers
(1) This section applies in relation to the tax file number of an individual that is provided to the Secretary under this Act for the purposes of this Act.
Assistance to the Secretary
(2) The Secretary may:
(a) provide the tax file number referred to in subsection (1) to the Commissioner of Taxation; and
(b) require the Commissioner of Taxation to provide the Secretary with information about the individual (including the number the Commissioner of Taxation considers to be the individual’s tax file number) that is requested by the Secretary.
(3) Information provided to the Secretary under a requirement made under subsection (2) may be used only for the following purposes:
(a) to detect cases in which amounts of family assistance under the family assistance law have been paid when they should not have been paid;
(b) to verify, in respect of individuals who have made claims for family assistance under the family assistance law, the eligibility or entitlement of those individuals for family assistance;
(c) to establish whether the rates at which family assistance under the family assistance law are being, or have been, paid are, or were, correct;
(d) to assist in the recovery of a debt due to the Commonwealth under this Act.
Assistance to the Commissioner of Taxation
(4) The Secretary may provide the tax file number referred to in subsection (1) to the Commissioner of Taxation for the following purposes:
(a) to assist the Commissioner act under section 87 (applying tax refund to family assistance debt) in relation to a debt owed by an individual;
(b) to assist the Commissioner act under section 93 (applying tax refund to another person’s family assistance debt) in relation to a debt owed by an individual;
(c) to assist the payment of deductions to the Commissioner under section 225;
(d) to assist the Commissioner set off amounts under section 226.
Division 2—Confidentiality
161 Operation of Division
Commonwealth laws
(1) Nothing in this Division prevents a person from disclosing information to another person if the information is disclosed for the purposes of:
(a) the Child Support (Assessment) Act 1989; or
(b) the Child Support (Registration and Collection) Act 1988.
State and Territory laws
(1A) Nothing in this Division prevents a person from disclosing information to another person if the information is disclosed for the purposes of:
(a) the Education and Care Services National Law applying as a law of a State or Territory; or
(b) a law of a State or Territory that applies the Education and Care Services National Law as a law of that State or Territory (whether or not that law has commenced); or
(c) regulations made under the Education and Care Services National Law; or
(d) a law of a State or Territory that substantially corresponds to the provisions of the Education and Care Services National Law (whether or not that law has commenced); or
(e) regulations made under a law referred to in paragraph (d).
No effect on operation of the Freedom of Information Act 1982
(2) The provisions of this Division that relate to the disclosure of information do not affect the operation of the Freedom of Information Act 1982.
161A Definitions
In this Division:
taxation information means information (including protected information within the meaning of subsection 355‑30(1) in Schedule 1 to the Taxation Administration Act 1953 but not including a tax file number) that is held by a taxation officer.
taxation officer means the following:
(a) a person who is a taxation officer within the meaning of subsection 355‑30(2) in Schedule 1 to the Taxation Administration Act 1953;
(b) an entity covered by section 355‑15 in that Schedule.
162 Permitted obtaining of, making a record of, disclosure of or use of protected information
(1) A person may obtain protected information if the information is obtained for the purposes of:
(a) the family assistance law; or
(aa) the Dental Benefits Act 2008; or
(b) the Family Homelessness Prevention and Early Intervention Pilot.
Note: For an example of obtaining protected information for the purposes of the family assistance law, see section 162A.
(2) A person may:
(a) make a record of protected information; or
(b) disclose such information to any person; or
(c) otherwise use such information;
if the record, disclosure or use made of the information by the person is made:
(d) for the purposes of the family assistance law; or
(daa) for the purposes of the Dental Benefits Act 2008; or
(dab) for the purposes of the social security law; or
(dac) for the purposes of the Paid Parental Leave Act 2010; or
(dad) for the purposes of the Student Assistance Act 1973; or
(dae) for the purposes of the Education and Care Services National Law; or
(da) for the purpose of the Family Homelessness Prevention and Early Intervention Pilot; or
(e) for the purpose for which the information was disclosed to the person under section 167 or 168; or
(f) with the express or implied authorisation of the person to whom the information relates.
Note: For an example of a disclosure of, making a record of or the use of protected information for the purposes of the family assistance law, see section 162A.
(2A) A person may use protected information to produce information in an aggregated form that does not disclose, either directly or indirectly, information about a particular person.
(3) The Minister may, by legislative instrument, specify additional purposes relating to other programs administered by the Department for which protected information may be obtained under subsection (1), or recorded, disclosed or otherwise used under subsection (2).
(5) An instrument under subsection (3) does not take effect until the end of the period in which it could be disallowed in either House of the Parliament.
162A Obtaining of, making a record of, disclosure of or use of protected information relating to taxation information
Disclosure to taxation officers for matching against taxation information
(1) A disclosure of protected information by an officer is made for the purposes of the family assistance law if:
(a) the disclosure is to a taxation officer; and
(b) the disclosure is for the purposes of a taxation officer matching that information against taxation information to facilitate the performance of functions, or the exercise of powers, under the family assistance law.
(2) The obtaining of, making of a record of or the use of protected information by an officer is for the purposes of the family assistance law if the obtaining of, making of the record of or the use of the protected information is in connection with a disclosure referred to in subsection (1).
Authorised collection of personal information that is taxation information
(3) The collection of personal information about a person is authorised by this Act for the purposes of the Privacy Act 1988 if:
(a) the personal information is taxation information; and
(b) the collection is from a taxation officer; and
(c) the collection is for the purposes of the family assistance law.
Obtaining of taxation information
(4) If an officer obtains personal information about a person in the circumstances referred to in subsection (3), then the officer has obtained the information under the family assistance law.
Interpretation
(5) This section does not limit section 162.
163 Offence—unauthorised obtaining of protected information
(1) If:
(a) a person intentionally obtains information; and
(b) the person is not authorised under the family assistance law to obtain the information; and
(c) the person knows or ought reasonably to know that the information is protected information;
the person commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.
(2) Strict liability applies to the element of an offence against subsection (1) that a person not authorised to do something is not authorised under the family assistance law to do that thing.
164 Offence—unauthorised making a record of, disclosure of or use of protected information
(1) If:
(a) a person intentionally:
(i) makes a record of; or
(ii) discloses to any other person; or
(iii) otherwise makes use of;
information; and
(b) the person is not authorised or required under:
(i) the family assistance law; or
(ii) the Social Security Act 1991; or
(iii) the Social Security (Administration) Act 1999;
to make the record, disclosure or use of the information that is made by the person; and
(c) the person knows or ought reasonably to know that the information is protected information;
the person commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.
(2) Strict liability applies to the element of an offence against subsection (1) that a person not authorised or required to do something is not authorised or required to do that thing under:
(a) the family assistance law; or
(b) the Social Security Act 1991; or
(c) the Social Security (Administration) Act 1999.
165 Offence: soliciting disclosure of protected information
(1) If:
(a) a person (the first person) solicits the disclosure of protected information from an officer or another person; and
(b) the disclosure would be in contravention of this Division; and
(c) the first person knows or ought reasonably to know that the information is protected information;
the first person commits an offence (whether or not any protected information is actually disclosed) punishable on conviction by imprisonment for a term not exceeding 2 years.
(2) Strict liability applies to paragraph (1)(b).
166 Offence: offering to supply protected information
(1) A person must not offer to supply (whether to a particular person or otherwise) information about another person, knowing the information to be protected information.
Penalty: Imprisonment for 2 years.
(2) A person must not hold himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person, knowing the information to be protected information.
Penalty: Imprisonment for 2 years.
(3) Nothing in subsection (1) or (2) has the effect that an officer acting in the performance or exercise of his or her powers, duties or functions under the family assistance law commits an offence.
167 Protection of certain documents etc. from production to court etc.
An officer must not, except for the purposes of the family assistance law or the Royal Commissions Act 1902, be required:
(a) to produce any document in his or her possession; or
(b) to disclose any matter or thing of which he or she had notice;
because of the officer’s powers, or the performance of the officer’s duties or functions, under the family assistance law, to:
(c) a court; or
(d) a tribunal; or
(e) an authority; or
(f) a person;
having power to require the production of documents or the answering of questions.
168 Disclosure of information by Secretary
(1) Despite sections 164 and 167, the Secretary may:
(a) if the Secretary certifies that it is necessary in the public interest to do so in a particular case or class of cases—disclose information acquired by an officer in the exercise of the officer’s powers, or the performance of the officer’s duties or functions, under the family assistance law to such persons and for such purposes as the Secretary determines; or
(b) disclose any such information:
(i) to the Secretary of a Department of State of the Commonwealth or to the head of an authority of the Commonwealth for the purposes of that Department or authority; or
(ii) to a person who is expressly or impliedly authorised by the person to whom the information relates to obtain it; or
(iii) to the Chief Executive Centrelink for the purposes of a centrelink program; or
(iv) to the Chief Executive Medicare for the purposes of a medicare program.
(2) In giving certificates for the purposes of paragraph (1)(a), the Secretary must act in accordance with guidelines (if any) from time to time in force under section 169.
(3) In disclosing information under paragraph (1)(b), the Secretary must act in accordance with guidelines (if any) from time to time in force under section 169.
(4) In spite of any other provision of this Part, the Secretary may disclose information of a kind referred to in paragraph (a) or (b) of the definition of protected information in subsection 3(1) to a person who is the payment nominee or correspondence nominee, within the meaning of Part 8B, of the person to whom the information relates (the principal) as if the nominee were the principal.
(5) If:
(a) the Secretary or an officer is served with a summons or notice, or is otherwise subject to a requirement, under the Royal Commissions Act 1902; and
(b) in order to comply with the summons, notice or requirement, the Secretary or officer would be required to disclose information that is protected information;
then, despite sections 164 and 167 of this Act, the Secretary or officer must, subject to the Royal Commissions Act 1902, disclose that information. The information is taken to have been disclosed for the purposes of the Royal Commissions Act 1902 and of the Royal Commission concerned.
169 Guidelines for exercise of Secretary’s disclosure powers
The Minister may, by legislative instrument, make guidelines for the exercise of either or both of the following:
(a) the Secretary’s power to give certificates for the purposes of paragraph 168(1)(a);
(b) the Secretary’s power under paragraph 168(1)(b).
170 Officer’s declaration
An officer must make a declaration in a form approved by the Minister or the Secretary if required to do so by the Minister or the Secretary for the purposes of the family assistance law.
Division 3—False statements etc.
Subdivision A—Preliminary
171 Application of Division
This Division extends to:
(a) acts, omissions, matters and things outside Australia, whether or not in a foreign country; and
(b) all persons, irrespective of their nationality, who are making, or have made, a claim for family assistance; and
(c) all persons, irrespective of their nationality, who have become entitled to, or been paid, family assistance.
Subdivision B—Offences
172 False statement in connection with claim
(1) A person contravenes this section if:
(a) the person makes a statement; and
(b) the statement is false or misleading; and
(c) the person is reckless as to whether the statement is false or misleading; and
(d) the statement is made in connection with, or in support of, the person’s or any other person’s claim for family assistance.
(2) The reference in paragraph (1)(d) to a claim for family assistance includes the following:
(a) an application referred to in paragraph 67CD(4)(a) (ACCS (grandparent));
(b) an application referred to in paragraph 67CD(6)(a) (ACCS (transition to work));
(c) a declaration referred to in paragraph 67CH(1)(c) (ACCS (child wellbeing) for an approved provider).
173 False statement to deceive
(1) A person contravenes this section if:
(a) the person makes a statement; and
(b) the statement is false or misleading; and
(c) the person is reckless as to whether the statement is false or misleading; and
(d) the person is reckless as to whether the statement:
(i) deceives, or might deceive, an officer or an approved provider exercising powers, or performing duties, under the family assistance law; or
(ii) affects, or might affect, an entitlement to a payment of family assistance under the family assistance law; or
(iii) affects, or might affect, the rate or amount of a payment of family assistance under the family assistance law; or
(iv) affects, or might affect, eligibility for CCS for a child.
(2) For the purposes of an offence against section 177 that relates to a contravention of subsection (1) of this section, strict liability applies to the following elements of the offence:
(a) the element that a power, duty or function is a power, duty or function under the family assistance law;
(b) the element that a payment is a payment under the family assistance law.
174 False statement or document
(1) A person contravenes this subsection if:
(a) the person makes a statement or presents a document to an officer or an approved provider exercising powers, or performing duties or functions, under the family assistance law; and
(b) the statement or document is false in any particular; and
(c) the person is reckless as to whether the statement or document is false in any particular.
(2) For the purposes of an offence against section 177 that relates to a contravention of subsection (1) of this section, strict liability applies to the element of the offence that a power, duty or function is a power, duty or function under the family assistance law.
175 Obtaining payment where no entitlement
(1) A person contravenes this section if:
(a) the person obtains a payment of family assistance; and
(b) the person does so knowing that he or she is:
(i) not entitled to the payment; or
(ii) only entitled to part of the payment.
(2) Paragraph (1)(a) is taken to include a reference to a provider or an individual who obtains a fee reduction amount.
176 Payment obtained by fraud
(1) A person contravenes this subsection if:
(a) the person obtains a payment:
(i) of family assistance; or
(ii) under section 67EB (fee reduction amount); or
(iii) under section 205A or 205C (business continuity payments); and
(b) the person does so:
(i) by means of impersonation; or
(ii) by fraudulent means.
(2) A person contravenes this subsection if:
(a) the person makes a statement; and
(b) the statement is false or misleading; and
(c) the person is reckless as to whether the statement is false or misleading; and
(d) the person obtains, as a result, a payment:
(i) of family assistance; or
(ii) under section 67EB (fee reduction amount); or
(iii) under section 205A or 205C (business continuity payments).
Subdivision C—Penalties
177 Penalty for contravention of Subdivision B
A person who contravenes a provision of Subdivision B commits an offence punishable on conviction by imprisonment for a term not exceeding 12 months.
178 Repayment of family assistance
(1) If a person is convicted of an offence against section 177, the court may:
(a) impose a penalty in respect of the offence; and
(b) order the person to pay the Commonwealth an amount equal to any amount obtained by way of family assistance or payments under section 67EB, 205A or 205C because of the act, failure or omission that constituted the offence.
(2) In spite of anything in this Act or any other law, a person is not to be imprisoned for failing to pay an amount payable to the Commonwealth under paragraph (1)(b).
(3) For the purposes of this section, an amount of family assistance is taken to be paid to a person if that amount is applied against a liability of that person or another person for:
(a) a primary tax; or
(b) a debt under this Act or the Social Security Act 1991.
179 Penalty where person convicted of more than one offence
(1) Subject to subsection (2), if a person is convicted of more than one offence against section 177, the court may, if it thinks fit, impose one penalty for all the offences.
(2) A single penalty imposed under subsection (1) must not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed for each offence.
Subdivision D—Procedural matters
180 Joining of charges
Charges against the same person for a number of offences against section 177 may be joined in one complaint, information or declaration if those charges:
(a) are founded on the same facts; or
(b) form a series of offences of the same or a similar character; or
(c) are part of a series of offences of the same or a similar character.
181 Particulars of each offence
If 2 or more charges are included in the same complaint, information or declaration, particulars of each offence charged are to be set out in a separate paragraph.
182 Trial of joined charges
If charges are joined, the charges are to be tried together unless:
(a) the court considers it just that any charge should be tried separately; and
(b) the court makes an order to that effect.
183 Evidentiary effect of Secretary’s certificate
(1) For the purposes of paragraph 178(1)(b), a certificate signed by the Secretary is prima facie evidence of the matters specified in the certificate.
(2) The certificate may specify:
(a) the person to whom an amount of family assistance has been paid, or who has obtained a fee reduction amount because of an act, a failure or an omission for which the person or another person has been convicted of an offence against section 177; and
(b) the amount paid or obtained; and
(c) the act, failure or omission that caused the amount to be paid or obtained.
184 Enforcement of court certificate as judgment
If:
(a) a court makes an order under paragraph 178(1)(b); and
(b) the clerk or other appropriate officer of the court gives a certificate specifying:
(i) the amount ordered to be paid to the Commonwealth; and
(ii) the person by whom the amount is to be paid; and
(c) the certificate is filed in a court (which may be the court that made the order) that has civil jurisdiction to the extent of the amount to be paid;
the certificate is enforceable in all respects as a final judgment of the court in which the certificate is filed.
Part 7—Liability of certain employers and principals for offences
Division 1—Interpretation
185 State of mind of a person
A reference in this Part to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
188 Offence
A reference in this Part to an offence against this Act includes a reference to:
(a) an offence against this Act that is taken to have been committed because of section 11.2 or 11.2A of the Criminal Code; or
(b) an offence created by:
(i) section 11.1, 11.4 or 11.5 of the Criminal Code; or
(ii) section 6 of the Crimes Act 1914;
that relates to this Act.
Division 3—Proceedings against non‑corporations
191 State of mind of individual
If, in proceedings for an offence against this Act in respect of conduct engaged in by a person other than a corporation, it is necessary to establish the state of mind of the person, it is sufficient to show that:
(a) the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and
(b) the employee or agent had that state of mind.
192 Conduct of employee or agent
If:
(a) conduct is engaged in on behalf of a person other than a corporation by an employee or agent of the person; and
(b) the conduct is within the scope of the employee’s actual or apparent authority;
the conduct is taken, for the purposes of a prosecution for an offence against this Act, to have been engaged in by the person unless the person establishes that he or she took reasonable precautions, and exercised due diligence, to avoid the conduct.
193 Exclusion of imprisonment as penalty for certain offences
Despite any other provision of this Act, if:
(a) a person is convicted of an offence; and
(b) the person would not have been convicted if sections 191 and 192 had not been in force;
the person is not liable to be punished by imprisonment for that offence.
Part 8—Approval of provider of child care services
Division 1—Provider approval
194A Application for approval
Application
(1) Any of the following (a provider):
(a) an individual;
(b) a body corporate;
(c) a partnership;
(d) an entity or body prescribed by the Minister’s rules;
may apply to be approved for the purposes of the family assistance law in respect of one or more child care services that the provider operates or proposes to operate.
(2) The application must:
(a) be given in a form and manner approved by the Secretary; and
(b) contain any information prescribed by the Secretary’s rules; and
(c) contain any other information, and be accompanied by the documents, required by the Secretary.
(3) An application is taken not to have been made:
(a) if the application does not comply with subsection (2); or
(b) in circumstances prescribed by the Minister’s rules.
194B Provider approval
Provider approval
(1) The Secretary may approve a provider for the purposes of the family assistance law if the Secretary is satisfied that:
(a) the provider satisfies the provider eligibility rules in section 194C; and
(b) the provider operates, or will operate, at least one child care service that satisfies the service eligibility rules in section 194D.
Approval in respect of child care service
(2) If the Secretary approves a provider under subsection (1), the Secretary:
(a) must approve the provider in respect of at least one child care service that meets the requirements in subsection (3); and
(b) may approve the provider in respect of one or more other child care services that meet the requirements in subsection (3).
(3) For a provider to be approved in respect of a child service, the Secretary must be satisfied that the service:
(a) is or will be operated by the provider; and
(b) satisfies the service eligibility rules in section 194D.
Notice of approval
(4) If the Secretary approves the provider, the Secretary must give notice to the provider stating:
(a) the child care services in respect of which the provider is approved; and
(b) the type and address of each service; and
(c) the day on which the provider’s approval takes effect; and
(d) the day on which the provider’s approval in respect of each child care service takes effect.
(5) For the purposes of subsections (1) and (2), the day on which the approval takes effect must not be earlier than the day the application was made, unless the Secretary considers that, due to special circumstances, it is appropriate for the approval to take effect on an earlier day.
Refusal
(6) The Secretary must refuse to approve a provider for the purposes of the family assistance law if the Secretary is not satisfied of one or more of the matters referred to in subsection (1).
(7) The Secretary must refuse to approve a provider in respect of a child care service if the Secretary is not satisfied of one or more of the matters referred to in subsection (3) in respect of the service.
(8) If the Secretary refuses to approve a provider for the purposes of the family assistance law or refuses to approve the provider in respect of a child care service, the Secretary must give the applicant notice of:
(a) the refusal; and
(b) the reasons for the refusal.
194C Provider eligibility rules
A provider satisfies the provider eligibility rules if:
(a) for each child care service in respect of which the provider is seeking approval—the provider holds any approvals or licences required to operate a child care service under the law of the State or Territory in which the service is situated; and
(b) the provider is a fit and proper person to be involved in the administration of CCS and ACCS; and
(c) any person with management or control of the provider is a fit and proper person to be involved in the administration of CCS and ACCS; and
(d) any person who will be a person with management or control of the provider on the day the provider’s approval takes effect, or the day the provider’s approval in respect of a child care service takes effect, is a fit and proper person to be involved in the administration of CCS and ACCS; and
(da) the provider has arrangements in place to ensure that the provider and the following persons comply with the family assistance law:
(i) the persons mentioned in paragraphs (c) and (d);
(ii) each person that the provider, or a person mentioned in subparagraph (i), is responsible for managing; and
(e) for a large centre‑based day care provider—the provider is financially viable and is likely to remain so; and
(f) the provider satisfies any other criteria prescribed by the Minister’s rules.
Note: See section 194F for the definition of person with management or control.
194D Service eligibility rules
A child care service satisfies the service eligibility rules if:
(a) the service is of a type referred to in subclause 2(3) of Schedule 2 to the Family Assistance Act but is not any of the following:
(i) informal care provided through personal arrangements;
(ii) a service primarily conducted to provide instruction in an activity (such as sport or music);
(iii) a service primarily conducted to provide a disability or early intervention service;
(iv) a service where a parent primarily provides care or is readily available and retains responsibility for the child while the service is provided (such as a play group);
(v) a service primarily providing short‑term irregular care at premises where the parent is a visitor or guest and the parent is readily available (such as a service provided by a gym);
(vi) a service that primarily provides an early educational program to children in the year that is 2 years before grade 1 of school (such as a preschool or kindergarten); and
(b) the provider of the service holds any approvals or licences required to operate the service under the law of the State or Territory in which the service is situated; and
(c) each person who is responsible for the day‑to‑day operation of the service (whether or not the person is employed by the provider of the service) is a fit and proper person to be involved in the administration of CCS and ACCS; and
(d) each person who will be responsible for the day‑to‑day operation of the service (whether or not the person is employed by the provider of the service) on the day that the provider’s approval in respect of the service takes effect is a fit and proper person to be involved in the administration of CCS and ACCS; and
(da) the provider of the service has arrangements in place to ensure that the following persons comply with the family assistance law:
(i) the persons mentioned in paragraphs (c) and (d);
(ii) each person that a person mentioned in subparagraph (i) is responsible for managing; and
(e) in the case where the service is covered by allocation rules—if the provider of the service were to be approved, child care places would be allocated to the service under section 198B; and
(f) the Secretary is satisfied that it is appropriate for the provider to be approved in respect of the service having regard to the following:
(i) if the provider is already an approved provider—any conditions imposed on the provider’s approval;
(ii) any non‑compliance by the provider with a law of the Commonwealth or a State or Territory;
(iii) the provider’s record of administering payments under the family assistance law;
(iv) the provider’s record of administering of Commonwealth, State or Territory funds;
(v) the capacity for staff working at the service to use the electronic system for managing child care payments under the family assistance law;
(vi) any other matter prescribed by the Minister’s rules;
(vii) any other matter the Secretary considers relevant; and
(g) the service satisfies any other criteria prescribed by the Minister’s rules.
194E Fit and proper person considerations
(1) The Secretary must have regard to the following matters in determining whether a person is a fit and proper person for the purpose of paragraph 194C(b), (c) or (d) or 194D(c) or (d):
(a) any non‑compliance by a relevant person with a law of the Commonwealth or a State or Territory;
(b) any proceedings currently before a court or tribunal that involve a relevant person;
(c) any decision made under a law of the Commonwealth or a State or Territory relating to child care which adversely affects a relevant person;
(d) subject to Part VIIC of the Crimes Act 1914, any conviction, or finding of guilt, against a relevant person for an offence against a law of the Commonwealth or a State or Territory, including (without limitation) an offence against children, or relating to dishonesty or violence;
(e) any order for a relevant person to pay a pecuniary penalty for the contravention of a civil penalty provision of a law of the Commonwealth or a State or Territory;
(f) any act of a relevant person involving fraud or dishonesty;
(h) the record of administering of Commonwealth, State or Territory funds of a relevant person;
(i) any debts to the Commonwealth incurred by a relevant person (whether or not the debt has been discharged);
(j) the record of financial management of a relevant person, including any instances of bankruptcy, insolvency or external administration involving the person;
(k) any other matter prescribed by the Minister’s rules;
(l) any other matter the Secretary considers relevant.
(2) For the purposes subsection (1), a relevant person is:
(a) the person; and
(b) another person or body in respect of which the person is or has ever been a person with management or control.
Note: See section 194F for the definition of person with management or control.
194F Meaning of person with management or control
(1) A person is a person with management or control of a body, if the person is any of the following:
(a) a member of the group of persons responsible for the executive decisions of the body;
(b) a person who has authority or responsibility for, or significant influence over, planning, directing or controlling the activities of the body;
(c) a person who is responsible for the day‑to‑day operation of the body (whether or not the person is employed by the body);
(d) a person who is responsible for the day‑to‑day operation of a child care service in respect of which the body is approved or is seeking to be approved (whether or not the person is employed by the body).
(2) Without limiting paragraph (1)(a), the following persons are taken to be members of the group referred to in that paragraph:
(a) if the body is a body corporate—an officer of the body corporate (within the meaning of the Corporations Act 2001);
(b) if the body is a partnership—a partner;
(c) in any other case—a member of the body’s governing body.
194G Meaning of approved child care service
(1) A child care service is an approved child care service if an approved provider is approved in respect of the service under this Division and that approval is in effect.
(2) If the approved provider’s approval under this Division is suspended or suspended in respect of the service, the service is not an approved child care service at any time when the suspension is in effect.
194H Obligations and permissions of an approved child care service are those of the approved provider
For the purposes of the family assistance law:
(a) an obligation imposed by that law on an approved child care service is taken to be imposed on the approved provider of the service; and
(b) a permission conferred by that law on an approved child care service is taken to be conferred on the approved provider of the service.
Division 2—Conditions for continued approval
195A Conditions for continued approval—compliance with rules and law
Continued satisfaction of eligibility rules
(1) It is a condition for continued approval of an approved provider that:
(a) the provider continues to satisfy the provider eligibility rules in section 194C; and
(b) each approved child care service of the provider continues to satisfy the service eligibility rules in section 194D.
Compliance with family assistance law
(2) It is a condition for continued approval of an approved provider that the provider not contravene the family assistance law (whether or not the contravention constitutes an offence or is a contravention of a civil penalty provision).
Note: Enforcement under this Part of this and other conditions is not limited or affected by other compliance measures in relation to these provisions (for example under the Regulatory Powers Act).
(3) It is a condition for continued approval of an approved provider that the provider cooperate with a person exercising powers under:
(a) section 67FH (power to require information about care provided); and
(b) section 154 (power to obtain information generally); and
(c) the Regulatory Powers Act in respect of a provision mentioned in subsection 219UA(1), or information mentioned in subsection 219UA(2), of this Act.
Compliance with Commonwealth, State and Territory laws
(4) It is a condition for continued approval of an approved provider that:
(a) the operation of each approved child care service of the provider; and
(b) the provision of care by each service;
comply with all requirements imposed by a law of the Commonwealth or a law of the State or Territory in which the service is situated.
195B Conditions for continued approval—child care places limit not to be exceeded
It is a condition for continued approval of an approved provider that, if an approved child care service of the provider is covered by the allocation rules:
(a) the service provides child care places; and
(b) the service provides no more child care places than the number allocated to the service.
195C Conditions for continued approval—operating period for each approved child care service
(1) It is a condition for continued approval of an approved provider that each child care service of the provider operates for the period determined in accordance with this subsection (the minimum period).
(2) Subject to subsections (3) and (4), the minimum period is:
(a) 48 weeks per year; or
(b) if the service is an outside school hours care service—7 weeks per year.
(3) If the Minister’s rules prescribe an alternative period for a service and subsection (4) does not apply, then the minimum period for the service is the period prescribed by the Minister’s rules.
(4) If the Secretary is satisfied that due to special circumstances affecting a service it is appropriate for the service to operate for a shorter period, the minimum period for the service is the number of weeks per year (which may be nil) that the Secretary determines, in writing, to be appropriate.
195D Conditions for continued approval—working with children check
(1) It is a condition for continued approval of an approved provider that, for each individual required under a law of a State or Territory to hold a working with children check in relation to care provided by a child care service of the provider, the provider must ensure that the individual has a current working with children check.
(2) For the purposes of subsection (1), a working with children check is a check that permits the individual to work with children under a law of the State or Territory in which the service is situated.
195E Condition for continued approval—compliance with conditions imposed by Minister
It is a condition for continued approval of an approved provider that the provider complies with any conditions prescribed by the Minister’s rules in respect of the provider or an approved child care service of the provider.
195F Condition for continued approval—compliance with conditions imposed by Secretary
(1) It is a condition for continued approval of an approved provider that the provider complies with any conditions imposed on the provider under subsection (2).
(2) The Secretary may impose conditions in respect of:
(a) an approved provider; or
(b) one or more approved child care services of a provider.
(3) If the Secretary imposes a condition, the Secretary must give notice of the condition to the approved provider. The notice must specify the day the condition takes effect.
(4) A notice given under subsection (3) is not a legislative instrument.
195G Reassessment of continued approval
The Secretary may at any time assess whether a provider is complying with the conditions for continued approval of the provider.
195H Consequences of breach of conditions for continued approval
Sanctions
(1) If the Secretary is satisfied that an approved provider has not complied, or is not complying, with a condition for continued approval of the provider, the Secretary may do one or more of the following:
(a) suspend the provider’s approval;
(b) cancel the provider’s approval;
(c) suspend the provider’s approval in respect of one or more child care services;
(d) vary the provider’s approval so that the provider is not approved in respect of one or more child care services;
(e) reduce the number of any child care places allocated to the service under section 198B;
(f) suspend, for a maximum of 3 weeks, payments under section 67EB of fee reduction amounts in respect of sessions of care provided by one or more approved child care services of the provider.
Note 1: The Secretary may also decide to vary or impose additional conditions under subsection 195F(2).
Note 2: Before doing a thing mentioned in paragraphs (a) to (f), the Secretary must follow the procedure in section 199A.
(2) In exercising a power under subsection (1), the Secretary must have regard to any matters prescribed by the Minister’s rules as matters to be taken into account by the Secretary in applying the subsection to approved providers.
Notice of sanction
(3) If the Secretary does any of the things mentioned in subsection (1), the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the thing takes effect (which must be not earlier than the day the notice is given).
Revocation of suspension
(4) If the Secretary suspends the provider’s approval or suspends the provider’s approval in respect of one or more child care services, the Secretary may at any time revoke the suspension.
(5) If the Secretary revokes the suspension, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the revocation takes effect (which may be earlier than the day the revocation is done).
(6) In exercising a power under subsection (4), the Secretary must have regard to any matters prescribed by the Minister’s rules as matters to be taken into account by the Secretary in specifying the day of effect of a revocation of a suspension.
Revocation of suspension of payment in respect of fee reduction
(7) If the Secretary suspends payment in respect of fee reduction, the Secretary may at any time revoke the suspension. If the suspension is revoked, all payments under section 67EB that would have been paid but for the suspension must be paid.
(8) If the Secretary revokes the suspension, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the revocation takes effect (which may be earlier than the day the revocation is done).
Division 3—Adding or removing services
196A Application to add or remove service
(1) An approved provider may apply for a variation of the provider’s approval to add a child care service to, or remove a child care service from, the provider’s approval.
(2) The application must:
(a) be given in a form and manner approved by the Secretary; and
(b) contain any information prescribed by the Secretary’s rules; and
(c) contain any other information, and be accompanied by the documents, required by the Secretary.
(3) An application is taken not to have been made:
(a) if the application does not comply with subsection (2); or
(b) in circumstances prescribed by the Minister’s rules.
196B Adding a service on application
Variation
(1) If:
(a) an approved provider applies under section 196A to add a child care service to the provider’s approval; and
(b) the Secretary is satisfied that the service satisfies the requirements in subsection 194B(3);
the Secretary may vary the provider’s approval by adding the service to the approval as a service in respect of which the provider is approved.
Notice of approval
(2) If the Secretary varies the provider’s approval, the Secretary must give notice to the provider stating:
(a) the child care services in respect of which the provider is approved as a result of the variation; and
(b) the type and address of each service; and
(c) the day on which the provider’s approval in respect of each child care service takes effect.
(3) For the purposes of paragraph (2)(c), the day on which the approval takes effect must not be earlier than the day the application was made.
Refusal
(4) If the Secretary is not satisfied of the matter referred to in paragraph (1)(b), the Secretary must refuse the application.
(5) If the Secretary refuses the application, the Secretary must give the applicant notice of:
(a) the refusal; and
(b) the reasons for the refusal.
196C Removing a service on application
Variation
(1) If an approved provider applies under section 196A to remove a child care service from the provider’s approval, the Secretary may vary the provider’s approval by removing the service from the approval as a service in respect of which the provider is approved.
(2) The Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the variation takes effect (which may be earlier than the day the variation was made).
Refusal
(3) If the Secretary refuses the application, the Secretary must give the applicant notice of:
(a) the refusal; and
(b) the reasons for the refusal.
Secretary to have regard to prescribed matters
(4) In exercising a power under subsection (1), the Secretary must have regard to any matters prescribed by the Minister’s rules as matters to be taken into account by the Secretary in deciding whether to grant a request under subsection (1).
Division 4—Suspension, variation and cancellation of approval
197A Immediate suspension after Secretary’s decision
(1) The Secretary may suspend the approval of an approved provider, or the approval of an approved provider in respect of one or more services, if the Secretary reasonably believes that:
(a) the provider is not complying with subsection 195A(4) (compliance with Commonwealth, State and Territory laws); or
(b) there is an imminent threat to the health or safety of a child because of the care provided by an approved child care service of the provider; or
(c) due to urgent circumstances, it is no longer appropriate for one or more approved child care services of the provider to provide child care; or
(d) due to urgent circumstances, it is no longer appropriate for the provider to administer payments under the family assistance law.
(2) If the Secretary suspends the provider’s approval or suspends the provider’s approval in respect of one or more services, the Secretary must give the provider notice of:
(a) the day the suspension takes effect (which must not be earlier than the day the notice is given); and
(b) the grounds for the suspension.
(3) The Secretary may revoke the suspension.
(4) If the Secretary revokes the suspension, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the revocation takes effect (which may be earlier than the day the revocation was done).
197AA Suspension on request
Application
(1) The Secretary may suspend the approval of an approved provider, or the approval of an approved provider in respect of one or more services, if the provider requests the Secretary in writing to do so.
(2) The request must:
(a) be given in a form and manner approved by the Secretary; and
(b) specify a proposed day for the suspension to take effect (the start day); and
(c) specify a proposed day for the suspension to cease to have effect (the end day), which must not be later than 12 months after the start day; and
(d) contain any other information prescribed by the Secretary’s rules.
Suspension
(3) The Secretary may suspend the approval if the Secretary:
(a) agrees with the start day and the end day specified in the application; and
(b) is satisfied that the suspension is reasonable in the circumstances.
(4) If the Secretary suspends the approval, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify:
(a) the day the suspension takes effect (which may be earlier than the day the notice is given); and
(b) the day the suspension ceases to have effect.
Revocation
(5) The Secretary may revoke the suspension if the Secretary is satisfied that the revocation is reasonable in the circumstances.
(6) If the Secretary revokes the suspension, the Secretary must give notice to the provider of the day the revocation takes effect (which must not be earlier than the day the notice is given).
197AB Suspension if approval suspended under Education and Care Services National Law
Suspension of provider approval
(1) If:
(a) an approved provider holds a provider approval within the meaning of the Education and Care Services National Law; and
(b) the provider approval is suspended under the Education and Care Services National Law (the National Law provider suspension);
the approval of the approved provider is taken to be suspended under this section for the same period during which the National Law provider suspension is in effect.
Suspension of service approval
(3) If:
(a) an approved provider holds a service approval within the meaning of the Education and Care Services National Law; and
(b) the service approval is suspended under the Education and Care Services National Law (the National Law service suspension);
the approval of the approved provider in respect of the service covered by the service approval is taken to be suspended under this section for the same period during which the National Law service suspension is in effect.
Secretary must give notice of suspension
(5) If the approval of an approved provider, or the approval of an approved provider in respect of one or more services, is suspended under this section, the Secretary must give the provider notice of the suspension.
197B Suspension, cancellation or variation for multiple infringement notices
(1) If an approved provider has been given 10 infringement notices under Part 5 of the Regulatory Powers Act in respect of alleged contraventions of civil penalty provisions of this Act within a period of 12 months, the Secretary may do one or more of the following:
(a) suspend the approval of the approved provider;
(b) suspend the approval of the approved provider in respect of one or more services;
(c) cancel the approval of the approved provider;
(d) vary the provider’s approval so that the provider is not approved in respect of one or more child care services.
Note: Before doing a thing mentioned in paragraphs (a) to (d), the Secretary must follow the procedure in section 199A.
(2) For the purposes of subsection (1):
(a) an infringement notice is taken to have been given to an approved provider under Part 5 of the Regulatory Powers Act whether it has been paid or not; and
(b) an infringement notice is taken not to have been given to an approved provider under Part 5 of the Regulatory Powers Act if the infringement notice is withdrawn in accordance with section 106 of that Act.
Suspension
(3) If the Secretary suspends the provider’s approval, or suspends the provider’s approval in respect of one or more services, the Secretary must give the provider notice of the day the suspension takes effect (which must not be earlier than the day the notice is given).
(4) The Secretary may revoke the suspension.
(5) If the Secretary revokes the suspension, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the revocation takes effect (which may be earlier than the day the revocation was done).
Cancellation
(6) If the Secretary cancels the provider’s approval, the Secretary must give the provider notice of the day the cancellation takes effect (which must not be earlier than the day the notice is given).
Variation
(7) If the Secretary varies the provider’s approval by removing a child care service from the approval, the Secretary must give the provider notice of the day the variation takes effect (which must not be earlier than the day the notice is given).
197C Cancellation on request
(1) The Secretary may cancel the approval of an approved provider if the provider requests the Secretary in writing to do so.
(2) In exercising a power under subsection (1), the Secretary must have regard to any matters prescribed by the Minister’s rules as matters to be taken into account by the Secretary in deciding whether to grant the request under subsection (1).
(3) If the Secretary cancels the approval, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the cancellation takes effect (which may be earlier than the day the notice is given).
197D Cancellation if provider should not have been approved
(1) The Secretary must cancel the approval of an approved provider if the Secretary is satisfied that, at the time the provider was approved, the provider did not satisfy the requirements in subsection 194B(1).
(2) If the Secretary cancels the provider’s approval, the Secretary must give the provider notice of the day the cancellation takes effect (which may be earlier than the day the notice is given).
Note: Before cancelling the approval the Secretary must follow the procedure in section 199A.
197E Variation if provider should not have been approved in respect of a service
(1) The Secretary must vary the approval of an approved provider so that the provider is not approved in respect of a child care service if the Secretary is satisfied that, at the time the provider was approved in respect of the service, the service did not satisfy the requirements in subsection 194B(3).
(2) If the Secretary varies the provider’s approval by removing the service from the approval, the Secretary must give the provider notice of the day the variation takes effect (which may be earlier than the day the notice is given).
Note: Before varying the approval the Secretary must follow the procedure in section 199A.
197F Cancellation for failure of provider to provide care for 3 continuous months
(1) The Secretary may cancel the approval of an approved provider if:
(a) all approved child care services of the provider fail to provide child care for a continuous period of 3 months; and
(b) none of the following apply:
(i) the provider’s approval is suspended under section 197AA for any part of the 3 month period;
(ii) all approved child care services of the provider are subject to a determination under section 195C that the service need not operate for the period;
(iii) the Secretary is satisfied that, because of special circumstances affecting the provider, the provider’s approval should not be cancelled.
(2) If the Secretary cancels the provider’s approval, the Secretary must give the provider notice of the day the cancellation takes effect (which may be earlier than the day the notice is given).
(3) Before cancelling the provider’s approval, the Secretary must request, in writing, that the provider provide within 14 days evidence that the provider is operating a child care service.
(4) The Secretary must have regard to any response to the request in deciding whether to cancel the approval.
197G Variation for failure of service to provide care for 3 continuous months
(1) The Secretary may vary the approval of an approved provider to remove an approved child care service from the approval if:
(a) the service fails to provide child care for a continuous period of 3 months; and
(b) none of the following apply:
(i) the provider’s approval with respect to the service is suspended under section 197AA for any part of the 3 month period;
(ii) the service is subject to a determination under section 195C that the service need not operate for the period;
(iii) the Secretary is satisfied that, because of special circumstances affecting the service, the provider’s approval should not be so varied.
(2) If the Secretary varies the provider’s approval, the Secretary must give the provider notice of the day the variation takes effect (which may be earlier than the day the notice is given).
(3) Before varying the provider’s approval, the Secretary must request, in writing, that the provider provide, within 14 days, evidence that the provider is operating the service.
(4) The Secretary must have regard to any response to the request in deciding whether to vary the approval.
197H Cancellation for ceasing to operate any approved child care service
(1) The Secretary must cancel the approval of an approved provider if the provider ceases to operate all the approved child care services of the provider.
(2) If the Secretary cancels the approval, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the cancellation takes effect (which may be earlier than the day the notice is given).
(3) In this section:
ceases to operate has the meaning given by the Minister’s rules.
197J Variation for ceasing to operate a child care service
(1) The Secretary must vary the approval of an approved provider to remove an approved child care service from the approval if the provider ceases to operate the service.
(2) If the Secretary varies the approval, the Secretary must give notice to the provider that the Secretary has done so. The notice must specify the day the variation takes effect (which may be earlier than the day the notice is given).
(3) In this section:
ceases to operate has the meaning given by the Minister’s rules.
197K Cancellation because no longer approved in respect of any child care service
(1) The approval of an approved provider is taken to be cancelled if there are no longer any child care services in respect of which the provider is approved.
(2) If the approval is cancelled under this section, the Secretary must give notice to the provider of the cancellation. The notice must specify the day the cancellation takes effect.
197L Cancellation or variation if approval cancelled under Education and Care Services National Law
Cancellation of provider approval
(1) If:
(a) an approved provider holds a provider approval within the meaning of the Education and Care Services National Law; and
(b) the provider approval is cancelled under the Education and Care Services National Law (the National Law provider cancellation);
the approval of the approved provider is taken to be cancelled under this section on the same day as the day on which the National Law provider cancellation takes effect.
Note: A provider approval may be cancelled on a number of grounds under the Education and Care Services National Law, including if it is surrendered.
(2) If the approval of an approved provider is cancelled under subsection (1), the Secretary must give the provider notice of the cancellation.
Variation of provider approval following cancellation of service approval
(3) If:
(a) an approved provider holds a service approval within the meaning of the Education and Care Services National Law; and
(b) the service approval is cancelled under the Education and Care Services National Law (the National Law service cancellation);
the approval of the approved provider is taken to be varied under this section to remove the service to which the National Law service cancellation relates from the approval on the same day as the day on which that cancellation takes effect.
Note: A service approval may be cancelled on a number of grounds under the Education and Care Services National Law, including if it is surrendered.
(4) If the approval of an approved provider in respect of one or more services is varied under subsection (3), the Secretary must give the provider notice of the variation.
Division 5—Allocation of child care places
198A Allocation of child care places to approved child care services
The Minister’s rules may prescribe the following (the allocation rules):
(a) procedures relating to the allocation of child care places to approved child care services;
(b) matters to be taken into account in working out the number (if any) of child care places to be allocated to approved child care services;
(ba) what constitutes a child care place in respect of a specified class of approved child care services;
(c) child care services subject to the allocation rules;
(d) the maximum number of places that can be allocated to approved child care services in a specified class;
(e) any other matters to be taken into account in making such an allocation;
(f) procedures relating to the reduction under section 198C of the number of child care places allocated to approved child care services;
(g) matters to be taken into account in working out the number of child care places by which the number of child care places allocated to approved child care services may be reduced under section 198C;
(h) any other matters to be taken into account in reducing, or deciding whether to reduce, under section 198C the number of child care places allocated to approved child care services.
198B Secretary to allocate child care places
Initial allocation of child care places
(1) If an approved child care service is subject to the allocation rules, the Secretary must allocate child care places to the service in accordance with the rules.
Additional allocation of child care places
(2) If an approved child care service has been allocated a number of child care places, the approved provider of the service may apply to the Secretary for additional child care places.
(3) The application must:
(a) be given in a form and manner approved by the Secretary; and
(b) contain any information prescribed by the Secretary’s rules; and
(c) contain any other information, and be accompanied by the documents, required by the Secretary.
(4) The Secretary must decide, in accordance with the allocation rules, whether or not to grant the application.
(5) The Secretary must give the applicant notice of the decision under subsection (4).
(6) If the Secretary decides to grant the application, the Secretary must allocate the additional child care places to the service.
198C Reduction of allocation of child care places by unused or unusable places
(1) The Secretary may reduce, in accordance with the allocation rules, the number of child care places allocated to an approved child care service if:
(a) that number exceeds the number of child care places provided by the service; or
(b) that number exceeds the number of child care places that the service is, under a law of a State or Territory, licensed to provide.
The reduction must not be greater than the number of excess places.
(2) Before the reduction, the Secretary must (unless the provider has informed the Secretary in writing that the allocated number may be reduced) give a notice to the approved provider of the service that:
(a) states that the Secretary proposes to make the reduction; and
(b) states the number of places by which the Secretary proposes to reduce the number of places allocated to the service; and
(c) invites the provider to make written submissions to the Secretary about the proposed reduction; and
(d) is not inconsistent with the allocation rules.
(3) If the approved provider of the service has informed the Secretary in writing that the number of child care places allocated to the service may be reduced, the Secretary may give the provider a notice under subsection (2) before making the reduction.
(4) The Secretary must have regard to any submissions made by the approved provider of the service in accordance with an invitation under paragraph (2)(c) in deciding whether to make the reduction.
(5) If the Secretary reduces the number of child care places allocated to an approved child care service, the Secretary must give the approved provider of the service a notice that states:
(a) the number of places by which the number of places allocated to the service is reduced; and
(b) the day on which the reduction takes effect, which must not be earlier than the day on which the notice is given; and
(c) the number of places allocated to the service, taking account of the reduction.
Division 6—Miscellaneous
199A Procedure before certain consequences apply
(1) Before doing a thing mentioned in subsection 195H(1) or section 197B, 197D or 197E, the Secretary must give a notice to the provider concerned that:
(a) states that the Secretary is considering doing the thing; and
(b) sets out the grounds for doing the thing; and
(c) summarises the evidence and other material on which those grounds are based; and
(d) summarises the effect of doing of the thing on eligibility for CCS or ACCS in respect of a session of care provided by an approved child care service of the provider; and
(e) summarises the provider’s rights under this Act to seek a review of the decision to do the thing; and
(f) invites the provider to make written submissions to the Secretary, within 28 days, stating why the thing should not be done.
(2) The Secretary must have regard to any submissions made by the provider in accordance with an invitation under paragraph (1)(f) in deciding whether to do the thing.
199B Publicising sanctions or suspensions
(1) If any of the following events occur, the Secretary may publicise the event in any way the Secretary thinks appropriate:
(a) the Secretary does one or more of the things mentioned in subsection 195H(1);
(b) the Secretary suspends the approval of an approved provider under subsection 197A(1);
(ba) the approval of an approved provider, or the approval of an approved provider in respect of one or more services, is suspended by operation of section 197AB;
(bb) the Secretary suspends, cancels or varies the approval of an approved provider under subsection 197B(1);
(bc) the approval of an approved provider is cancelled or varied by operation of section 197L;
(c) a person is ordered by a court to pay a pecuniary penalty in relation to a civil penalty provision of this Act;
(d) a person is convicted of an offence against this Act (including an offence against Chapter 7 of the Criminal Code that relates to this Act).
(2) Without limiting subsection (1), the Secretary may publicise information that includes the following:
(a) the name of the provider;
(b) the name and address of an approved child care service or former approved child care service of the provider;
(c) the grounds for the occurrence of the event specified in subsection (1);
(d) if the information relates to the doing of one or more of the things mentioned in subsection 195H(1):
(i) the things done; and
(ii) the day when each thing done takes effect; and
(iii) each condition for continued approval of the provider with which the provider has not complied, or is not complying; and
(iv) the day (if any) when each thing done ceases to have effect;
(e) if the information relates to a suspension under subsection 197A(1) or section 197AB:
(i) the day when the suspension takes effect; and
(ii) the day (if any) when the suspension ceases to have effect;
(f) if the information relates to a suspension, cancellation or variation under subsection 197B(1):
(i) the day when the suspension, cancellation or variation takes effect; and
(ii) the details of the infringement notices which formed the grounds for the suspension, cancellation or variation; and
(iii) if the information relates to a suspension—the day (if any) when the suspension ceases to have effect;
(g) if the information relates to a cancellation or variation under section 197L—the day when the cancellation or variation takes effect.
199C Notice to Secretary of matters affecting approval
(1) An approved provider must give the Secretary written notice of the following matters as soon as practicable after the provider becomes aware of the matter:
(a) the provider did not satisfy the requirements in subsection 194B(1) at the time the provider became approved;
(b) a service in respect of which the provider is or was approved did not satisfy the requirements in subsection 194B(3) at the time the provider became approved in respect of the service;
(c) the provider has not complied, or is not complying, with a condition for continued approval of the provider.
Note: Section 204F also requires an approved provider to notify the Secretary of certain matters.
Offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: 80 penalty units.
Civil penalty
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 60 penalty units.
199D Notice to provider of review rights for decisions under this Part
If the Secretary is required by a provision of this Part to give a provider notice of a decision, the notice must include a statement of the provider’s rights under this Act to seek a review of the decision.
199E Notifying individuals about effect on eligibility
(1) If the Secretary is satisfied that an approved provider has not complied, or is not complying, with a condition for continued approval of the provider, the Secretary may give a notice to an individual whose eligibility for CCS or ACCS may be affected if the Secretary were to cancel, suspend or vary the provider’s approval because of the Secretary being so satisfied.
(2) A notice under subsection (1) must:
(a) state that the Secretary is satisfied that the provider has not complied, or is not complying, with a condition for continued approval of the provider; and
(b) set out the effect on the individual’s eligibility if the Secretary were to cancel, suspend or vary the provider’s approval.
The notice may set out any other information that the Secretary thinks relevant.
(3) If the Secretary cancels, suspends or varies the provider’s approval under this Part, the Secretary may give a notice to an individual whose eligibility for CCS or ACCS may be affected because of that action.
(4) A notice under subsection (3) must:
(a) state that the Secretary has cancelled, suspended or varied the provider’s approval; and
(b) set out the effect of the action on the individual’s eligibility.
The notice may set out any other information that the Secretary thinks relevant.
(5) A notice under this section must be given in a form and manner approved by the Secretary.
199F Certain providers not required to comply with requirements
If the Minister’s rules specify the provider of a child care service for the purposes of this section:
(a) the provider is not required to satisfy paragraph 194C(a) in order to satisfy the provider eligibility rules; and
(b) the provider is not required to satisfy or comply with any other provision prescribed by the Minister’s rules in order to become, or remain, approved for the purposes of the family assistance law.
199G Minister’s rules in relation to backdating of approvals etc.
(1) The Minister’s rules may prescribe modifications of this Act or the Family Assistance Act to apply in respect of the following persons and periods:
(a) approved providers whose approval takes effect on a day earlier than the day the Secretary gives the provider notice of the approval, for the period starting when the approval takes effect, and ending when the Secretary gives the notice;
(b) approved providers whose approval in respect of a child care service takes effect on a day earlier than the day the Secretary gives the provider notice of the approval, for the period starting when the approval in respect of the service takes effect and ending when the Secretary gives the notice;
(c) providers whose approval, or approval in respect of a child care service, is suspended, for the period of the suspension;
(d) approved providers whose suspension is revoked with effect from a day earlier than the day the Secretary gives the provider notice of the revocation, for the period starting when the revocation takes effect and ending when the Secretary gives the notice.
(2) Subsection (1) does not limit subsection 85GB(1) of the Family Assistance Act.
Part 8A—Provider requirements and other matters
Division 1—Requirements in relation to enrolments and relevant arrangements
200A Enrolment notices
Notice if a child starts to be enrolled
(1) An approved provider of an approved child care service must give the Secretary a notice in accordance with subsection (4) if a child starts to be enrolled for care by the service.
Notice if a child starts to be enrolled before approval given or during suspension of approval
(2) An approved provider of an approved child care service must give the Secretary a notice in accordance with subsection (4) if:
(a) on the day a child starts to be enrolled for care by the service:
(i) the provider is not approved, or not approved in respect of the service; or
(ii) the provider’s approval, or approval in respect of the service, is suspended; and
(b) after that day, the Secretary gives the provider notice:
(i) that the provider has been approved, or approved in respect of the service; or
(ii) that the suspension has been revoked; and
(c) the child is enrolled for care by the service on any day on or after the day the approval or revocation takes effect.
Notice if relevant arrangement entered into
(3) An approved provider of an approved child care service must give the Secretary a notice in accordance with subsection (4) if the provider and a person enter into an arrangement (a relevant arrangement) other than a complying written arrangement for the service to provide care to a child.
Content and timing of notices
(4) A notice is given in accordance with this subsection if:
(a) it is given in a form and manner approved by the Secretary; and
(b) it contains the information required by the Secretary; and
(c) for a notice under subsection (1)—it is given by the later of:
(i) 7 days after the end of the week in which the child started to be enrolled; or
(ii) if the child started to be enrolled in a period, or a series of consecutive periods, to which a payment under section 205A relates—7 days after the end of the period, or the last such period; and
(d) for a notice under subsection (2)—it is given no later than 7 days after the end of the week in which the Secretary gave the notice referred to in paragraph (2)(b); and
(e) for a notice under subsection (3)—it is given no later than 7 days after the end of the week in which the relevant arrangement is entered into.
(4A) If an approved provider of an approved child care service fails to give a notice under subsection (1), (2) or (3) by the day required under paragraph (4)(c), (d) or (e) (as the case requires):
(a) the failure does not affect the validity of a notice given after that day; and
(b) the notice is taken to have been given on the last day the notice was required to be given under paragraph (4)(c), (d) or (e) (as the case requires), other than for the purposes of subsections (5) and (6).
Offence
(5) A person commits an offence of strict liability if the person contravenes subsection (1), (2) or (3).
Penalty: 60 penalty units.
Civil penalty
(6) A person is liable to a civil penalty if the person contravenes subsection (1), (2) or (3).
Civil penalty: 30 penalty units.
200B When a child is enrolled
(1) A child:
(a) starts to be enrolled for care by a child care service of a provider if:
(i) the provider and an individual enter into a complying written arrangement for the service to provide care to the child; or
(ii) the service provides care to the child in the circumstances referred to in subsection (4); and
(b) ceases to be enrolled for care by that service when the earliest of the following events happens:
(i) for an enrolment that started as referred to in subparagraph (a)(i)—the arrangement ends;
(ii) for an enrolment that started as referred to in subparagraph (a)(ii)—the care ceases to be provided in those circumstances;
(iii) 14 weeks have passed since the child last attended any of the service’s sessions of care;
(iv) an event prescribed by the Minister’s rules.
(1A) The Minister’s rules may prescribe circumstances in which one or more weeks covered wholly or partly by a period of emergency or disaster are to be disregarded for the purposes of subparagraph (1)(b)(iii).
(2) A child is enrolled for care by a service from the day the child starts to be enrolled until the child ceases to be enrolled. To avoid doubt, a child who ceases to be enrolled for care by a service is not enrolled for care by that service until the child starts to be enrolled for care by that service again.
(3) A written arrangement between a provider and an individual is a complying written arrangement if the arrangement complies with the requirements prescribed by the Secretary’s rules.
(4) A service provides care to a child in the circumstances referred to in this subsection if:
(a) immediately before the service starts to provide the care, the child is not enrolled for care by the service; and
(b) any of the following applies in relation to the week in which the service starts to provide the care:
(i) a certificate given by the approved provider of the service under section 85CB (certification for ACCS (child wellbeing)) of the Family Assistance Act is in effect in relation to the child;
(ii) a determination made by the Secretary under section 85CE (determination for ACCS (child wellbeing)) of the Family Assistance Act is in effect in relation to the child;
(iii) the approved provider of the service has applied for a determination under section 85CE of the Family Assistance Act and the application has not been refused; and
(c) the provider gives the Secretary a declaration referred to in paragraph 67CH(1)(c) in relation to sessions of care provided by the service to the child.
200C Variation of complying written arrangements
An approved provider must ensure that a variation of a complying written arrangement to which the provider is a party is done in writing, if the variation:
(a) has the effect that information in the enrolment notice given by the provider for the child to whom the arrangement relates becomes incorrect; or
(b) relates to a matter prescribed by the Minister’s rules.
Civil penalty: 30 penalty units.
200D Notice of change in circumstances—providers
(1) An approved provider must give the Secretary notice in accordance with subsection (3) of the following events in relation to complying written arrangements or relevant arrangements to which the provider is a party and enrolment notices given by the provider:
(a) a complying written arrangement is varied in a way that:
(i) has the effect that information in the enrolment notice given in relation to a child becomes incorrect; or
(ii) relates to a matter prescribed by the Minister’s rules for the purposes of paragraph 200C(b);
(b) information in an enrolment notice otherwise becomes incorrect;
(c) information becomes available that, had it been available when an enrolment notice was given, should have been included in the notice;
(d) information becomes available that, had it been available when an enrolment notice was given, would have required the notice to be given in a different form;
(e) a child for whom an enrolment notice has been given ceases to be enrolled for care by the service for the reason mentioned in subparagraph 200B(1)(b)(i) (complying written arrangement ends);
(f) a relevant arrangement in relation to a child has ended.
(2) An approved provider must give the Secretary a notice in accordance with subsection (3) if:
(a) on the day an event referred to in subsection (1) happens, the provider’s approval, or approval in respect of the service, is suspended; and
(b) after that day, the Secretary gives the provider notice that the suspension has been revoked; and
(c) the child is enrolled for care by the service on any day on or after the day the revocation takes effect.
(3) A notice under subsection (1) or (2) is given in accordance with this subsection if it is given:
(a) in a form and manner approved by the Secretary; and
(b) for a notice under subsection (1)—no later than the later of:
(i) 7 days after the day the event happened; and
(ii) if the event happened in a period, or a series of consecutive periods, to which a payment under section 205A relates—7 days after the end of the period, or the last such period; and
(c) for a notice under subsection (2)—no later than 7 days after the Secretary gave the notice referred to in paragraph (2)(b).
(3A) If an approved provider of an approved child care service fails to give a notice under subsection (1) or (2) by the day required under paragraph (3)(b) or (c) (as the case requires):
(a) the failure does not affect the validity of a notice given after that day; and
(b) the notice is taken to have been given on the last day the notice was required to be given under paragraph (3)(b) or (c) (as the case requires), other than for the purposes of subsections (4) and (5).
Offence
(4) A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty
(5) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 30 penalty units.
Division 2—Requirements in relation to CCS and ACCS by fee reduction
201A Requirement to pass on fee reduction amount to individual entitled to be paid CCS or ACCS
Requirement to pass on or remit to Secretary fee reduction amount
(1) A provider to whom a notice is given of a fee reduction decision for an individual must, no later than 14 days after the notice is given:
(a) pass on the fee reduction amount for the decision to the individual; or
(b) if it is not reasonably practicable to do so—remit the fee reduction amount to the Secretary, in a manner approved by the Secretary.
(2) Subsection (1) does not apply in relation to a notice that includes a statement to the effect that the Secretary has decided to pay the fee reduction amount directly to the individual under subsection 67EC(2).
Note 1: See subsections 67CE(6), 106A(3), 109B(2B) and 136(3).
Note 2: In a prosecution for an offence under subsection (3), a defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(2A) If the Secretary is satisfied that there might be an adverse impact on the individual if the fee reduction amount for the decision is passed on or remitted within the period of 14 days referred to in subsection (1), the Secretary may direct that the period of 14 days is extended by such period as the Secretary considers appropriate.
(2B) If the Secretary gives a direction under subsection (2A) extending the period of 14 days referred to in subsection (1), subsection (1) has effect as if the reference to 14 days were a reference to the extended period.
(2C) The Secretary may give more than one direction under subsection (2A) extending the period referred to in subsection (1).
Offence
(3) A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 80 penalty units.
Civil penalty
(4) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 60 penalty units.
Passing on
(5) A provider may pass on a fee reduction amount by reducing fees or in any other way. As long as the individual receives the benefit of the fee reduction amount from the provider:
(a) the provider is taken to have passed on the fee reduction amount; and
(b) the individual is taken to have been paid an amount of CCS or ACCS equal to the amount of the fee reduction amount.
Notice of remittance
(6) A provider that remits an amount in accordance with paragraph (1)(b) must give the Secretary written notice of the remittance:
(a) in a form and manner approved by the Secretary; and
(b) including any information required by the Secretary.
(7) The provider must give the notice under subsection (6):
(a) no later than 14 days after the notice of the fee reduction decision was given; or
(b) if the Secretary has given a direction under subsection (2A) extending the period of 14 days referred to in subsection (1)—no later than the end of the extended period.
201B Enforcing payment of hourly session fees
Duty to enforce payment of hourly session fees
(1) A provider to whom a notice is given of a fee reduction decision referred to in item 1 or 2 of the table in subsection 67EB(2) for an individual, for sessions of care provided by a service to a child in a week, must take all reasonable steps to ensure that the individual pays the provider the difference between:
(a) the total of the hourly session fees for all sessions of care provided by the service to the child in the week to which the decision relates; and
(b) the sum of:
(i) the fee reduction amount for the decision; and
(ii) the amount of any payment prescribed by the Minister’s rules for the purposes of paragraph 2(2A)(c) of Schedule 2 to the Family Assistance Act that the individual benefited from in respect of the sessions of care.
Note 1: If, under subsection 201BA(1), the provider allows the individual, or the individual’s partner, a permissible staff discount for the week, the amount of the discount is not recoverable from the individual or the individual’s partner: see subsection 201BA(3).
Note 2: If, under subsection 201BB(1), the provider allows the individual, or the individual’s partner, a discount in relation to a session of care provided to the child in the week, the amount of the discount is not recoverable from the individual or the individual’s partner: see subsection 201BB(3).
Offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: 80 penalty units.
Civil penalty
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 60 penalty units.
201BA Provider may allow discount for care provided to child of educator or cook engaged by provider
(1) A provider to whom a notice is given of a fee reduction decision referred to in item 1 or 2 of the table in subsection 67EB(2) for an individual, for sessions of care provided by a child care service to a child in a week, may allow the individual, or the individual’s partner, a discount (a permissible staff discount) on the pre‑discount fee for the week for the individual, or the individual’s partner, if:
(a) the individual, or the individual’s partner, is employed, contracted or otherwise engaged at a child care service by the provider, for any period during that week, as an educator (within the meaning of the Education and Care Services National Law) or a cook; and
(b) the child care service referred to in paragraph (a) is not a family day care service or an in home care service.
Note: For pre‑discount fee, see subsection (4).
(2) The permissible staff discount that may be allowed to the individual, or the individual’s partner, for the week under subsection (1) must not be more than 95% of the pre‑discount fee for that week for the individual or the individual’s partner.
(3) If the provider allows the individual, or the individual’s partner, a permissible staff discount under subsection (1), the amount of the discount is not recoverable from the individual or the individual’s partner.
Note: Providing care of a child in a child care facility to a current employee at a discount may not attract fringe benefits tax in some circumstances: see subsection 47(2) of the Fringe Benefits Tax Assessment Act 1986.
Meaning of pre‑discount fee
(4) For the purposes of this section, the pre‑discount fee for the week for the individual, or the individual’s partner, is the difference between:
(a) the total of the hourly session fees for all sessions of care provided by the child care service to the child in the week; and
(b) the sum of:
(i) the fee reduction amount for the fee reduction decision for the individual in relation to those sessions of care; and
(ii) the amount of any payment prescribed by the Minister’s rules for the purposes of paragraph 2(2A)(c) of Schedule 2 to the Family Assistance Act that the individual benefited from in respect of those sessions of care.
201BB Provider may allow discount for session of care because of prescribed event or circumstance
(1) A provider to whom a notice is given of a fee reduction decision referred to in item 1 or 2 of the table in subsection 67EB(2) for an individual, for sessions of care provided by a child care service to a child in a week, may allow the individual, or the individual’s partner, a discount (a prescribed circumstances discount) on the pre‑discount fee for the week for the individual, or the individual’s partner, that is attributable to one or more sessions of care provided by the service to the child in the week if:
(a) the Minister’s rules prescribe a particular event or circumstance; and
(b) each session of care to which the discount relates is provided during the period prescribed by the Minister’s rules for that event or circumstance; and
(c) any other conditions prescribed by the Minister’s rules for that event or circumstance are met.
Note: For pre‑discount fee, see subsection (4).
(2) The prescribed circumstances discount that may be allowed to the individual, or the individual’s partner, under subsection (1) in relation to a session of care provided in the week may be the whole, or a part, of the pre‑discount fee for the week for the individual, or the individual’s partner, that is attributable to the session of care.
(3) If the provider allows the individual, or the individual’s partner, a prescribed circumstances discount under subsection (1), the amount of the discount is not recoverable from the individual or the individual’s partner.
Meaning of pre‑discount fee
(4) For the purposes of this section, the pre‑discount fee for the week for the individual, or the individual’s partner, is the difference between:
(a) the total of the hourly session fees for all sessions of care provided by the child care service to the child in the week; and
(b) the sum of:
(i) the fee reduction amount for the fee reduction decision for the individual in relation to those sessions of care; and
(ii) the amount of any payment prescribed by the Minister’s rules for the purposes of paragraph 2(2A)(c) of Schedule 2 to the Family Assistance Act that the individual benefited from in respect of those sessions of care; and
(iii) the amount of permissible staff discount (if any) allowed to the individual, or the individual’s partner, for the week under subsection 201BA(1).
201C Charging no more than usual hourly session fee
Duty to charge no more than usual hourly session fee
(1) The approved provider of a child care service must not charge an individual who is eligible for ACCS for a session of care provided by the service an hourly session fee that exceeds the hourly session fee that:
(a) the provider would ordinarily charge an individual who is eligible for CCS for the session of care; or
(b) if the provider has, under subsection 201BB(1), allowed the individual, or the individual’s partner, a discount in relation to the session of care—the provider charged immediately before the beginning of the period prescribed for the purposes of paragraph 201BB(1)(b).
(1A) The approved provider of a child care service must not charge an individual who benefits from a payment prescribed by the Minister’s rules for the purposes of paragraph 2(2A)(c) of Schedule 2 to the Family Assistance Act (a prescribed payment) in respect of a session of care provided by the service an hourly session fee that exceeds the hourly session fee that:
(a) the provider would ordinarily charge an individual who does not receive a prescribed payment; or
(b) if the provider has, under subsection 201BB(1), allowed the individual, or the individual’s partner, a discount in relation to the session of care—the provider charged immediately before the beginning of the period prescribed for the purposes of paragraph 201BB(1)(b).
(1B) The approved provider of a child care service must not charge an individual to whom, or to whose partner, a permissible staff discount is allowed for a week under subsection 201BA(1), an hourly session fee for a session of care provided by the service that exceeds the hourly session fee that:
(a) the provider would ordinarily charge an individual to whom a permissible staff discount is not allowed under subsection 201BA(1) for the week; or
(b) if the provider has, under subsection 201BB(1), allowed the individual, or the individual’s partner, a discount in relation to the session of care—the provider charged immediately before the beginning of the period prescribed for the purposes of paragraph 201BB(1)(b).
(1C) If:
(a) an individual is eligible for CCS for a session of care provided by a child care service to a child; and
(b) the approved provider of the service has, under subsection 201BB(1), allowed the individual, or the individual’s partner, a discount in relation to the session of care;
the provider must not charge the individual, for the session of care, an hourly session fee that exceeds the hourly session fee that the provider charged immediately before the beginning of the period prescribed for the purposes of paragraph 201BB(1)(b).
Offence
(2) A person commits an offence of strict liability if the person contravenes subsection (1), (1A), (1B) or (1C).
Penalty: 80 penalty units.
Civil penalty
(3) A person is liable to a civil penalty if the person contravenes subsection (1), (1A), (1B) or (1C).
Civil penalty: 60 penalty units.
201D Requirement to give individuals statements of entitlement
(1) This section applies if a provider is given a notice under subsection 67CE(4) of a determination made under section 67CD for an individual for a week, in relation to sessions of care provided to a child by an approved child care service of the provider.
(2) The provider must give the individual a written statement in accordance with subsection (3) for the statement period that includes the week.
(3) A statement is given in accordance with this subsection if:
(a) it includes the following:
(i) the start and end dates of the statement period;
(ii) the hourly session fee for each session of care provided by the service to the child in the statement period;
(iii) the total of the fee reduction amounts for the fee reduction decisions for the individual of which the provider was given notice for the weeks in the statement period;
(iv) any other information prescribed by the Secretary’s rules; and
(b) it is given no later than 7 days after the day the provider is required to give a report under section 204B (requirement to report about children for whom care is provided) for the last week in the statement period.
(4) If the Secretary’s rules prescribe another person to whom a statement must be given when a statement is given under subsection (2), the provider must give the prescribed person a written statement that includes the information prescribed for the person by the Secretary’s rules, by the time prescribed by the Secretary’s rules.
Offence
(5) A person commits an offence of strict liability if the person contravenes subsection (2) or (4).
Penalty: 60 penalty units.
Civil penalty
(6) A person is liable to a civil penalty if the person contravenes subsection (2) or (4).
Civil penalty: 30 penalty units.
(7) A statement period is:
(a) a CCS fortnight; or
(b) if the Secretary’s rules prescribe a different period—the prescribed period.
201E Statements following changes of entitlement
(1) This section applies if a provider is given notice under subsection 106A(2) or 109B(2A) of a decision on review that varies, or substitutes a new determination for, a determination made under section 67CD for an individual for a week.
(2) The provider must:
(a) if it is reasonably practicable to do so—give the individual a written statement in accordance with subsection (3); and
(b) otherwise—notify the Secretary that it is not reasonably practicable for the provider to do so and comply with any requirements prescribed by the Secretary’s rules in the circumstances.
(3) A statement is given in accordance with this subsection if:
(a) it does either of the following:
(i) it is given in accordance with subsection 201D(3) taking into account the effect of the decision on review;
(ii) it identifies the statement given under subsection 201D(2) in relation to the determination to which the review related and updates it to take into account the effect of the decision on review; and
(b) it is given no later than the end of the statement period immediately after the statement period in which the provider was given the notice referred to in subsection (1).
(4) If the Secretary’s rules prescribe another person to whom a statement must be given when a statement is given under subsection (2), the provider must give the prescribed person a written statement that includes the information prescribed for the person by the Secretary’s rules, by the time specified in the Secretary’s rules.
Offence
(5) A person commits an offence of strict liability if the person contravenes subsection (2) or (4).
Penalty: 60 penalty units.
Civil penalty
(6) A person is liable to a civil penalty if the person contravenes subsection (2) or (4).
Civil penalty: 30 penalty units.
Division 3—Requirements in relation to records
202A Requirement to make records
(1) An approved provider must make a written record of information or an event of which it becomes aware if:
(a) the provider would not otherwise have a written record of the information or event; and
(b) the information or event relates to any of the following:
(i) an individual’s eligibility for CCS or ACCS;
(ii) the eligibility of an approved child care service of the provider for ACCS (child wellbeing);
(iii) the provider’s compliance with the conditions for continued approval of the provider;
(iv) any other matter prescribed by the Secretary’s rules.
Offence
(2) A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 50 penalty units.
202B Requirement to keep records
Requirement to keep records
(1) An approved provider must keep records, in accordance with the Secretary’s rules, of information and events in relation to the following matters:
(a) an individual’s eligibility for CCS or ACCS;
(b) the eligibility of an approved child care service of the provider for ACCS (child wellbeing);
(c) the provider’s compliance with the conditions for continued approval of the provider;
(d) any other matter prescribed by the Secretary’s rules.
Duration of record‑keeping
(2) An approved provider must keep the records referred to in subsection (1) until at least:
(a) the end of the period of 7 years starting at the end of the financial year in which the care to which the information or event relates was provided; or
(b) the later time ordered by a court during proceedings for an offence against this Act (including an offence against Chapter 7 of the Criminal Code that relates to this Act) or for the contravention of a civil penalty provision, if an application for the order was made during:
(i) the period referred to in paragraph (a); or
(ii) proceedings relevant to a previous application of this paragraph.
Offence
(3) A person commits an offence of strict liability if the person contravenes subsection (1) or (2).
Penalty: 60 penalty units.
Civil penalty
(4) A person is liable to a civil penalty if the person contravenes subsection (1) or (2).
Civil penalty: 50 penalty units.
202C Requirement to keep records in relation to certification for ACCS (child wellbeing)
If a certificate is given
(1) If an approved provider gives the Secretary a certificate under section 85CB of the Family Assistance Act, the provider must:
(a) no later than 6 weeks after the day the certificate takes effect, obtain and make a record of:
(i) evidence to support the provider’s view that the child concerned is or was at risk of serious abuse or neglect; and
(ii) evidence that the provider has given an appropriate State/Territory support agency notice in accordance with section 204K; and
(b) keep those records for at least the period of 7 years starting at the end of the financial year in which the certificate ceases to have effect.
If certificate is cancelled
(2) If an approved provider:
(a) cancels a certificate under section 85CC of the Family Assistance Act (whether or not the provider gives a replacement certificate within the meaning of that section); or
(b) gives the Secretary a notice under section 67FC (child not at risk of serious abuse or neglect);
the provider must:
(c) no later than 6 weeks after the day the provider cancels the certificate or gives the notice, obtain and make a record of evidence to support the provider’s view that the child is not at risk of serious abuse or neglect for the period concerned; and
(d) keep those records for at least the period of 7 years starting at the end of the financial year in which the provider cancelled the certificate or gave the notice.
Offence
(3) A person commits an offence of strict liability if the person contravenes subsection (1) or (2).
Penalty: 80 penalty units.
Civil penalty
(4) A person is liable to a civil penalty if the person contravenes subsection (1) or (2).
Civil penalty: 60 penalty units.
202D Requirement to keep Secretary informed about location of records after suspension or cancellation
Notice of location at which records are kept
(1) If, with effect from a particular day (the effective day), the approval of a provider is:
(a) cancelled or suspended; or
(b) varied to remove a child care service from the approval; or
(c) suspended in respect of a child care service;
the provider must keep the Secretary informed, in accordance with subsection (2), of the location at which the provider’s records, or the provider’s records for the service, are kept.
(2) The provider must keep the Secretary informed by giving the Secretary written notice of the location:
(a) no later than 14 days after the effective day; and
(b) if the records are moved from the notified location—no later than 14 days after the move.
(3) If a suspension of a provider’s approval is revoked, subsection (1) ceases to apply to the provider from the day the revocation takes effect.
(4) If a suspension of a provider’s approval in respect of a child care service is revoked, subsection (1) ceases to apply to the provider in relation to the service from the day the revocation takes effect.
Offence
(5) A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty
(6) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 50 penalty units.
Division 4—Requirements relating to large centre‑based day care providers
203A Secretary may require financial information relating to large centre‑based day care providers
Notice requiring financial information
(1) The Secretary may, by written notice given in accordance with subsection (2), require a person referred to in section 203B to provide financial information in relation to the financial year in which the notice is given or any one or more of the 4 previous financial years, if:
(a) the information is for the purposes of determining whether a large centre‑based day care provider is financially viable and likely to remain so; and
(b) the Secretary reasonably believes that the person is capable of giving the information.
Note: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.
(2) A notice is given in accordance with this subsection if:
(a) it specifies the financial information required; and
(b) it specifies the period by which and the manner in which the person must comply with the notice.
Civil penalty for non‑compliance
(3) A person must comply with a notice given to the person under subsection (1).
Civil penalty: 60 penalty units.
(4) Subsection (3) does not apply to a person registered under the Australian Charities and Not‑for‑profits Commission Act 2012 to the extent that:
(a) the notice under subsection (1) requires the person to provide particular financial information to the Secretary; and
(b) the person has provided, or provides, that particular financial information to the Commissioner within the meaning of that Act before the end of the period specified under paragraph (2)(b).
Disclosure of personal information
(5) For the purposes of:
(a) paragraph 6.2(b) of Australian Privacy Principle 6; and
(b) a provision of a law of a State or Territory that provides that information that is personal may be disclosed if the disclosure is authorised by law;
the disclosure of personal information by a person in response to a notice given under this section is taken to be a disclosure that is authorised by this Act.
203B Persons to whom a financial information notice may be given
The persons to whom a notice under subsection 203A(1) in relation to a large centre‑based day care provider may be given are the following:
(a) the provider;
(b) a person who, at any time during the financial year, owns 15% or more of:
(i) the provider; or
(ii) if the provider consists of more than one person—any of those persons;
(c) a person who, at any time during the financial year, is entitled to receive 15% or more of the dividends paid by:
(i) the provider; or
(ii) if the provider consists of more than one person—any of those persons;
(d) a person who, at any time during the financial year, is owed a debt by the provider;
(e) a person who:
(i) acts, or is accustomed to act; or
(ii) under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;
in accordance with the directions, instructions or wishes of, or in concert with:
(iii) the provider; or
(iv) if the provider consists of more than one person—any of those persons;
(f) a person who directs or instructs:
(i) the provider; or
(ii) if the provider consists of more than one person—any of those persons;
to act in accordance with those directions or instructions;
(g) a person, if:
(i) the provider; or
(ii) if the provider consists of more than one person—any of those persons;
acts, or is accustomed to act, so as to give effect to the first‑mentioned person’s wishes;
(h) a person with whom:
(i) the provider; or
(ii) if the provider consists of more than one person—any of those persons;
acts, or is accustomed to act, in concert;
(i) a person, if:
(i) the provider; or
(ii) if the provider consists of more than one person—any of those persons;
is intended or expected to act under a contract or an arrangement or understanding (whether formal or informal) so as to give effect to the first‑mentioned person’s directions, instructions or wishes;
(j) a person with whom:
(i) the provider; or
(ii) if the provider consists of more than one person—any of those persons;
is intended or expected to act in concert under a contract or an arrangement or understanding (whether formal or informal).
203C Audit of approved provider
If, on the basis of information received under section 203A, the Secretary has concerns about the financial viability of an approved provider, the Secretary may engage an appropriately qualified and experienced expert to carry out an independent audit of the provider.
203D Report relating to an audit
(1) An expert who audits a provider under section 203C must prepare and give to the Secretary a report about the affairs of the provider.
(2) The expert’s report must deal with the following:
(a) whether the provider’s financial statements are based on proper accounts and records;
(b) whether the financial statements are in agreement with the accounts and records and show fairly the financial transactions and the state of the provider;
(c) any matter specified by the expert’s terms of engagement;
(d) such other matters arising out of the financial statements as the expert considers should be reported;
(e) any recommendations relating to maintaining or improving the financial viability of the provider that the expert considers desirable.
Division 5—Requirements in relation to information and reports
204A Requirements if approved provider stops operating an approved child care service
Notice if approved provider stops operating service
(1) At least 42 days before an approved provider stops operating a child care service in respect of which the provider is approved, the provider must notify the Secretary, in a form and manner approved by the Secretary, of the provider’s intention to stop operating the service.
(2) Subsection (1) does not apply if the provider stops operating the service for either of the following reasons:
(a) to avoid being in breach of a law of the Commonwealth, a State or a Territory;
(b) due to circumstances beyond the provider’s control.
(3) If the provider stops operating a child care service in respect of which the provider is approved for either of the reasons in subsection (2), the provider must notify the Secretary, in a form and manner approved by the Secretary, as soon as possible.
Offence
(4) A person commits an offence if the person contravenes subsection (1) or (3).
Penalty: 100 penalty units.
Civil penalty
(5) A person is liable to a civil penalty if the person contravenes subsection (1) or (3).
Civil penalty: 80 penalty units.
Requirement to give further information on request
(6) If:
(a) an approved provider notifies the Secretary in accordance with subsection (1) or (3); and
(b) the Secretary requests the provider in writing to give the Secretary specified information in relation to the provider’s notice;
the provider must give the Secretary the specified information in a form and manner approved by the Secretary and by the time specified in the Secretary’s request (which must be at least 14 days after the request is made).
Offence
(7) A person commits an offence if the person contravenes subsection (6).
Penalty: 100 penalty units.
Civil penalty
(8) A person is liable to a civil penalty if the person contravenes subsection (6).
Civil penalty: 80 penalty units.
204B Requirement to report about children for whom care is provided
(1) An approved provider of an approved child care service must give the Secretary a report in accordance with subsection (2) for a week if:
(a) the provider has given the Secretary an enrolment notice for a child; and
(b) care was provided to the child by the service on a day in the week.
Note: The provider must give enrolment notices to the Secretary relating to all children for whom care is provided, including both enrolled children (for whom complying written arrangements are made) and others for whom a relevant arrangement is made (see section 200A).
(1A) For the purposes of paragraph (1)(b), the care may be a session of care.
(2) A report is given in accordance with this subsection if:
(a) it is given in a form and manner approved by the Secretary; and
(b) if the child was enrolled for care on a day in the week—it includes the information required by the Secretary relevant to determining whether an individual is eligible for or entitled to be paid CCS or ACCS in relation to the session of care and, if so, the amount; and
(c) it includes any other information required by the Secretary; and
(d) it is given no later than:
(i) 14 days after the end of the week in which the session of care was provided; or
(ii) if the week is in a period, or a series of consecutive periods, to which a payment under section 205A relates—14 days after the end of the period, or the last such period; or
(iii) if the enrolment notice is given under subsection 200A(2)—the day the enrolment notice is required to be given under that subsection.
(3) For the purposes of paragraphs (2)(b) and (c), and to avoid doubt, a report is not given in accordance with subsection (2) unless the information included as required by those paragraphs is accurate and complete.
Offence
(4) A person commits an offence of strict liability if the person contravenes subsection (1) (regardless of whether the report is subsequently varied, substituted, withdrawn or corrected under subsection (6) of this section or section 204C).
Penalty: 70 penalty units.
Civil penalty
(5) A person is liable to a civil penalty if the person contravenes subsection (1) (regardless of whether the report is subsequently varied, substituted, withdrawn or corrected under subsection (6) of this section or section 204C).
Civil penalty: 50 penalty units.
Updating and withdrawing reports
(6) An approved provider may:
(a) vary the report or substitute it with an updated report; or
(b) if the report was not required to be given—withdraw the report;
as long as the provider does so no later than:
(c) the earlier of the following days:
(i) the 28th day after the start of the week to which the report relates or;
(ii) the last day of the financial year in which the CCS fortnight to which the report relates starts; or
(d) if the Secretary agrees to a later day—the later day agreed by the Secretary.
(6A) For the purposes of subsection (6), a reference to a report includes a report that is given after the last day the report was required to be given under paragraph (2)(d).
(7) Subsection (6) does not prevent the Minister’s rules under section 195E making provision for or in relation to approved providers varying, substituting or withdrawing reports given under this section.
204C Dealing with inaccurate reports
Requiring provider to withdraw report or substitute accurate report
(1) If the Secretary considers that a detail contained in a report given by an approved provider under subsection 204B(1) (requirement to report about children for whom care is provided) might not be accurate, the Secretary may, by written notice given to the provider, require the provider to withdraw the report, to vary it so that it becomes accurate or substitute it with an accurate report.
(1A) For the purposes of subsection (1), a report is taken to have been given by an approved provider under subsection 204B(1) even if the report is not given by the day required under paragraph 204B(2)(d).
Note: The report must still be given in accordance with paragraphs 204B(2)(a), (b) and (c), and the information included in the report as required by those provisions must be accurate and complete (see subsection 204B(3)).
(2) A person must comply with a notice given to the person under subsection (1), no later than:
(a) 14 days after the notice was given; or
(b) if the notice specifies a longer period—the end of that period.
Offence
(3) A person commits an offence of strict liability if the person contravenes subsection (2).
Penalty: 70 penalty units.
Civil penalty
(4) A person is liable to a civil penalty if the person contravenes subsection (2).
Civil penalty: 50 penalty units.
Correction of report by Secretary
(5) If the Secretary:
(a) knows that a detail contained in a report given by an approved provider under subsection 204B(1) is not accurate; and
(b) knows what the correct detail is; and
(c) has (if practicable) given the provider at least 14 days written notice of the Secretary’s intended correction of the report;
the Secretary may correct the report accordingly.
204D Requirement to give information about number of child care places
Notice to give information
(1) The Secretary may give an approved provider of an approved child care service a written notice requiring the provider to give the Secretary information the Secretary requires in order to determine whether to reduce the number of child care places allocated to the service.
(2) The notice must specify the following:
(a) the information the Secretary requires;
(b) the period, or each of the periods, in relation to which the information is required;
(c) the time by which the information in relation to the period, or each of the periods, is required.
(3) The notice may specify either or both of the following:
(a) the form and manner in which the information is to be provided to the Secretary;
(b) the length of time for which the provider must continue to comply with the notice.
Requirement to comply with notice
(4) The provider must comply with the notice in relation to the period, or each of the periods, specified in the notice.
Civil penalty
(5) A person is liable to a civil penalty if the person contravenes subsection (4).
Civil penalty: 30 penalty units.
(6) The Secretary may, by written notice given to a provider, terminate the effect of a notice given to the provider under subsection (1).
204E Requirement to give information about care provided
(1) If the Secretary requires an approved provider to give the Secretary information under section 67FH (information about care provided), the provider must comply with the notice.
Offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 40 penalty units.
204F Requirement to notify Secretary of certain matters
(1) The approved provider of an approved child care service must give the Secretary written notice of a matter prescribed by the Minister’s rules:
(a) in a form and manner approved by the Secretary; and
(b) by the time prescribed for the matter in the Minister’s rules.
Offence
(2) A person commits an offence of strict liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Civil penalty
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: 50 penalty units.
204G Requirements prescribed by Minister’s rules in relation to children who are members of a prescribed class
(1) The Minister’s rules may impose requirements on approved providers for the purposes of monitoring or investigating whether an approved child care service of the provider:
(a) is providing care in circumstances prescribed by the Minister’s rules for the purposes of subparagraph 85BA(1)(c)(iii) of the Family Assistance Act; or
(b) is providing care to a child who is a member of a class prescribed by the Minister’s rules for the purposes of paragraph 85ED(1)(b) of the Family Assistance Act.
(2) The requirements may relate to any of the following:
(a) making and keeping records;
(b) giving information to the Secretary;
(c) any other matter the Minister considers appropriate for the purposes referred to in subsection (1).
(3) To avoid doubt, this section is subject to subsection 85GB(3) of the Family Assistance Act.
204H Requirements that continue after provider’s approval is suspended, cancelled or varied
(1) If, with effect from a particular day (the effective day), the approval of a provider is:
(a) cancelled or suspended; or
(b) varied so as to remove a child care service from the approval; or
(c) suspended in respect of a child care service;
the provider must continue to comply with a provision specified in an item of the following table, in relation to the matters specified in that item for the provision, on and after the effective day as if the cancellation, variation or suspension had not happened.
Requirements that continue after cancellation, variation or suspension |
Item | Provider must continue to comply with this provision: | In relation to these matters: |
1 | section 200A | a child who started to be enrolled before the effective day, or for whom a relevant arrangement is entered into before the effective day |
2 | section 200C | a variation made before the effective day |
3 | section 200D | events mentioned in that section that occur before the effective day |
4 | section 201A | any notice given under subsection 67CE(4), whether given before, on or after the effective day |
5 | section 201B | sessions of care provided before the effective day, whether the notice under subsection 67CE(4) is given before, on or after the effective day |
6 | section 201C | sessions of care provided before the effective day |
7 | section 201D | any notice given under subsection 67CE(4), whether given before, on or after the effective day |
8 | section 201E | any notice given under subsection 106A(2) or 109B(2A), whether given before, on or after the effective day |
9 | section 202B | matters mentioned in subsection 202B(1) in relation to sessions of care provided before the effective day |
10 | section 202C | certificates given or cancelled, and notices given under section 67FC, before the effective day |
11 | section 204B | sessions of care provided before the effective day |
12 | section 204C | report given under subsection 204B(1) or that subsection as it applies because of this section |
13 | section 204E | notices given to the provider: (a) before the effective day; or (b) on or after the effective day in relation to a period before the effective day |
Note: For item 12, a report is taken to have been given under subsection 204B(1) for the purposes of subsection 204C(1) even if the report is given late (see subsection 204C(1A)).
Offence
(2) A person commits an offence if the person contravenes subsection (1).
Penalty: The number of penalty units that would apply if the contravention had been a contravention of the provision with which the provider is required to continue to comply.
Civil penalty
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Civil penalty: The number of penalty units that would apply if the contravention had been a contravention of the provision with which the provider is required to continue to comply.
204J Collection, use or disclosure of information for financial viability purposes
The collection, use or disclosure of personal information about an individual is taken to be authorised by this Act for the purposes of the Privacy Act 1988 if the collection, use or disclosure is reasonably necessary for the purposes of determining whether a large centre‑based day care provider is financially viable and likely to remain so.
204K Notice to appropriate State/Territory support agency of child at risk of serious abuse or neglect
Certification for ACCS (child wellbeing)
(1) An approved provider that gives the Secretary a certificate under section 85CB of the Family Assistance Act must, no later than the later of the following days, give an appropriate State/Territory body notice that the provider considers the child to whom the certificate relates is or was at risk of serious abuse or neglect:
(a) the day that is 6 weeks after the day the certificate takes effect;
(b) if the Secretary decides under subsection 85CB(2A) of that Act to extend for the provider the period of 28 days referred to in paragraph 85CB(2)(c) of that Act—the day that decision is made.
Note: A certificate cannot take effect on a day more than 28 days before the certificate is given unless that period is extended by the Secretary under subsection 85CB(2A) of the Family Assistance Act.
(2) Subsection (1) does not apply if:
(a) the certificate is cancelled under section 85CC of the Family Assistance Act and a replacement certificate (within the meaning of paragraph (4)(b) of that section) is not given; or
(b) the certificate is cancelled under section 85CD of the Family Assistance Act; or
(c) the provider was notified of the risk by an appropriate State/Territory support agency.
Determination for ACCS (child wellbeing)
(3) Before making an application for a determination under section 85CE of the Family Assistance Act, an approved provider must give an appropriate State/Territory support agency notice that the provider considers the child to whom the application relates is or was at risk of serious abuse or neglect.
(4) Subsection (3) does not apply if:
(a) the provider gave an appropriate State/Territory support agency a notice in relation to the child under subsection (1) less than 6 weeks ago; or
(b) the provider was notified of the risk by an appropriate State/Territory support agency.
Offence
(5) A person commits an offence of strict liability if the person contravenes subsection (1) or (3).
Penalty: 60 penalty units.
Civil penalty
(6) A person is liable to a civil penalty if the person contravenes subsection (1) or (3).
Civil penalty: 50 penalty units.
Meaning of appropriate State/Territory support agency
(7) Any of the following is an appropriate State/Territory support agency for the State or Territory where care is provided to the child to whom a certificate relates:
(a) a department or agency of the State or Territory that is responsible for dealing with matters relating to the welfare of children;
(b) an organisation dealing with such matters on behalf of such a department or agency in accordance with an agreement between the department or agency and the organisation.
Division 6—Business continuity payments
205A Business continuity payments—reports not given
(1) The Secretary may determine that a payment is to be made to an approved provider in relation to a period if all of the following apply:
(a) the provider is required to give a report under subsection 204B(1) (requirement to report about children for whom care is provided) for a week in respect of one or more enrolments;
(b) the provider does not give the report for the week by the time required for that report under section 204B;
(c) the Secretary is satisfied that the failure to give the report is due to circumstances prescribed by the Minister’s rules.
Note: Section 205B deals with the setting off of payments made under this section.
(2) The Minister’s rules:
(a) must prescribe a method of determining the amounts of payments under this section; and
(b) may prescribe any other matters relating to the making of payments under this section.
(3) The Secretary must pay the amount of any payment under this section to the credit of a bank account nominated and maintained by the approved provider.
(4) The Secretary must give the approved provider written notice of the payment and of the period to which the payment relates.
205B Setting off business continuity payments made under section 205A
(1) This section applies if a payment is made under section 205A to an approved provider in respect of the enrolment of a child for care by an approved child care service (the first service) of the provider.
(2) The Secretary must set off an amount equal to the payment against one or more child care service payments that are to be made in respect of an enrolment of a child for care:
(a) by the first service; or
(b) by any other approved child care service of the provider.
Note: For child care service payment see subsection 3(1).
205C Business continuity payments—emergency or disaster
(1) The Secretary may determine that a payment is to be made to an approved provider in relation to a period if the Secretary is satisfied that:
(a) an approved child care service of the provider has been adversely affected by an emergency or disaster; and
(b) the adverse effect on the service has, or is likely to have, a material adverse financial effect on the provider; and
(c) the provider and the service meet the eligibility criteria (if any) specified in the Minister’s rules; and
(d) the period is prescribed by the Minister’s rules; and
(e) the amount of the payment is:
(i) prescribed by the Minister’s rules; or
(ii) determined by a method prescribed by the Minister’s rules.
(2) An emergency or disaster is:
(a) an emergency or disaster prescribed by the Minister’s rules for the purposes of this paragraph; or
(b) a major disaster (within the meaning of the Social Security Act 1991); or
(c) a Part 2.23B major disaster (within the meaning of the Social Security Act 1991).
(3) The Minister’s rules may prescribe any other matters relating to the making of payments under this section.
(4) The Secretary must pay the amount of any payment under this section to the credit of a bank account nominated and maintained by the approved provider.
(5) The Secretary must give the approved provider written notice of the payment and of the period to which the payment relates.
Part 8B—Nominees
Division 1—Preliminary
219TA Definitions
In this Part:
correspondence nominee means a person who, by virtue of an appointment in force under section 219TC, is the correspondence nominee of another person.
nominee means a correspondence nominee or a payment nominee.
payment nominee means a person who, by virtue of an appointment in force under section 219TB, is the payment nominee of another person.
principal, in relation to a nominee, means the person in relation to whom the nominee was appointed.
relevant benefit means:
(a) family tax benefit by instalment; or
(b) family tax benefit for a past period; or
(c) family tax benefit by single payment/in substitution because of the death of another individual; or
(caa) family tax benefit under section 58AA of the Family Assistance Act; or
(d) stillborn baby payment; or
(f) CCS by fee reduction; or
(g) ACCS by fee reduction; or
(h) CCS or ACCS in substitution for an individual who has died; or
(hb) single income family supplement; or
(i) one‑off payment to families; or
(j) economic security strategy payment to families; or
(k) back to school bonus or single income family bonus; or
(l) clean energy advance; or
(m) ETR payment; or
(n) 2020 economic support payment; or
(o) additional economic support payment 2020; or
(p) additional economic support payment 2021.
Division 2—Appointment of nominees
219TB Appointment of payment nominee
Subject to section 219TD, the Secretary may, in writing:
(a) appoint a person (including a body corporate) to be the payment nominee of another person for the purposes of the family assistance law; and
(b) direct that the whole or a specified part of a specified relevant benefit payable to the nominee’s principal be paid to the nominee.
219TC Appointment of correspondence nominee
Subject to section 219TD, the Secretary may, in writing, appoint a person (including a body corporate) to be the correspondence nominee of another person for the purposes of the family assistance law.
219TD Provisions relating to appointments
(1) A person may be appointed as the payment nominee and the correspondence nominee of the same person.
(2) The Secretary must not appoint a nominee for a person (the proposed principal) under section 219TB or 219TC except:
(a) with the written consent of the person to be appointed; and
(b) after taking into consideration the wishes (if any) of the proposed principal regarding the making of such an appointment.
(3) The Secretary must cause a copy of an appointment under section 219TB or 219TC to be given to:
(a) the nominee; and
(b) the principal.
(4) The Secretary must not appoint a payment nominee or correspondence nominee for an approved provider.
219TE Suspension and cancellation of nominee appointments
(1) If a person who is a nominee by virtue of an appointment under section 219TB or 219TC informs the Secretary in writing that the person no longer wishes to be a nominee under that appointment, the Secretary must, as soon as practicable, cancel the appointment.
(2) If:
(a) the Secretary gives a person who is a nominee a notice under section 219TJ; and
(b) the person informs the Department that:
(i) an event or change of circumstances has occurred or is likely to occur; and
(ii) the event or change of circumstances is likely to have an effect referred to in paragraph 219TJ(1)(b);
the Secretary may suspend or cancel the appointment by virtue of which the person is a nominee.
(3) If:
(a) the Secretary gives a person who is a nominee a notice under section 219TJ or 219TK; and
(b) the nominee does not comply with the requirement of the notice;
the Secretary may suspend or cancel the appointment, or each appointment, by virtue of which the person is a nominee.
(4) While an appointment is suspended, the appointment has no effect for the purposes of the family assistance law.
(5) The Secretary may, at any time, cancel the suspension of an appointment under subsection (2) or (3).
(6) The suspension or cancellation of an appointment, and the cancellation of such a suspension, must be in writing.
(7) The cancellation of an appointment has effect on and from such day, being later than the day of the cancellation, as is specified in the cancellation.
(8) The Secretary must cause a copy of:
(a) a suspension of an appointment; or
(b) a cancellation of an appointment; or
(c) a cancellation of a suspension of an appointment;
to be given to:
(d) the nominee; and
(e) the principal.
Division 3—Payments to payment nominee
219TF Payment of amounts to payment nominee
(1) If:
(a) a person has a payment nominee; and
(b) the whole or a part of a relevant benefit is payable to the person; and
(c) the Secretary has given a direction in relation to the relevant benefit under section 219TB;
the relevant benefit is to be paid in accordance with the direction.
(2) An amount paid to the payment nominee of a person:
(a) is paid to the payment nominee on behalf of the person; and
(b) is taken, for the purposes of the family assistance law (other than this Part), to have been paid to the person and to have been so paid when it was paid to the nominee.
(3) An amount that is to be paid to the payment nominee of a person must be paid to the credit of a bank account nominated and maintained by the nominee.
(4) The Secretary may direct that the whole or a part of an amount that is to be paid to a payment nominee be paid to the payment nominee in a different way from that provided for by subsection (3). If the Secretary gives such a direction, an amount to which the direction relates is to be paid in accordance with the direction.
Division 4—Functions and responsibilities of nominees
219TG Actions of correspondence nominee on behalf of principal
(1) Subject to section 219TR and subsection (4), any act that may be done by a person under, or for the purposes of, the family assistance law (other than an act for the purposes of Division 2 or 3) may be done by the person’s correspondence nominee.
(2) Without limiting subsection (1), an application or claim that may be made under the family assistance law by a person may be made by the person’s correspondence nominee on behalf of the person, and an application or claim so made is taken to be made by the person.
(3) An act done by a person’s correspondence nominee under this section has effect, for the purposes of the family assistance law (other than this Part), as if it had been done by the person.
(4) If, under a provision of the family assistance law, the Secretary gives a notice to a person who has a correspondence nominee, subsection (1) does not extend to an act that is required by the notice to be done by the person.
219TH Giving of notices to correspondence nominee
(1) Any notice that the Secretary is authorised or required by the family assistance law to give to a person may be given by the Secretary to the person’s correspondence nominee.
(2) The notice:
(a) must, in every respect, be in the same form, and in the same terms, as if it were being given to the person; and
(b) may be given to the correspondence nominee personally or by post or in any other manner approved by the Secretary.
(3) If:
(a) under subsection (1), the Secretary gives a notice (the nominee notice) to a person’s correspondence nominee; and
(b) the Secretary afterwards gives the person a notice that:
(i) is expressed to be given under the same provision of the family assistance law as the nominee notice; and
(ii) makes the same requirement of the person as the nominee notice;
section 219TI ceases to have effect in relation to the nominee notice.
(4) If:
(a) under subsection (1), the Secretary gives a notice (the nominee notice) to a person’s correspondence nominee; and
(b) the Secretary has already given to the person a notice that:
(i) is expressed to be given under the same provision of the family assistance law as the nominee notice; and
(ii) makes the same requirement of the person as the nominee notice;
section 219TI does not have effect in relation to the nominee notice.
219TI Compliance by correspondence nominee
(1) In this section:
requirement means a requirement, made by the Secretary under this Act, to:
(a) inform the Secretary of a matter; or
(b) give information, or produce a document, to an officer; or
(c) give a statement to the Secretary.
(2) If, under section 219TH, a notice making a requirement of a person is given to the person’s correspondence nominee, the following paragraphs have effect:
(a) for the purposes of the family assistance law, other than this Part, the notice is taken:
(i) to have been given to the person; and
(ii) to have been so given on the day on which the notice was given to the correspondence nominee;
(b) any requirement made of the person may be satisfied by the correspondence nominee;
(c) any act done by the correspondence nominee for the purpose of satisfying a requirement of the notice has effect, for the purposes of the family assistance law (other than Division 3 of Part 6 of this Act), as if it had been done by the person;
(d) if the correspondence nominee fails to satisfy a requirement of the notice, the person is taken, for the purposes of the family assistance law, to have failed to comply with the requirement.
(3) In order to avoid doubt, it is declared as follows:
(a) if the requirement imposes an obligation on the person to inform the Secretary of a matter, or give the Secretary a statement, within a specified period and the correspondence nominee informs the Secretary of the matter, or gives the Secretary the statement, as the case may be, within that period, the person is taken, for the purposes of the family assistance law, to have complied with the requirement set out in the notice;
(b) if the requirement imposes an obligation on the person to give information, or produce a document, to an officer within a specified period and the correspondence nominee gives the information, or produces the document, as the case may be, to the officer within that period, the person is taken, for the purposes of the family assistance law, to have complied with the requirement set out in the notice;
(c) if the requirement imposes on the person an obligation to inform the Secretary of a matter, or give the Secretary a statement, within a specified period and the correspondence nominee does not inform the Secretary of the matter, or give the Secretary the statement, as the case may be, within that period, the person is taken, for the purposes of the family assistance law, to have failed to comply with the requirement set out in the notice;
(d) if the requirement imposes an obligation on the person to give information, or produce a document, to an officer within a specified period and the correspondence nominee does not give the information, or produce the document, as the case may be, to the officer within that period, the person is taken, for the purposes of the family assistance law, to have failed to comply with the requirement set out in the notice.
219TJ Notification by nominee of matters affecting ability to act as nominee
(1) The Secretary may give a nominee of a person a notice that requires the nominee to inform the Department if:
(a) either:
(i) an event or change of circumstances occurs; or
(ii) the nominee becomes aware that an event or change of circumstances is likely to occur; and
(b) the event or change of circumstances is likely to affect:
(i) the ability of the nominee to act as the payment nominee or correspondence nominee of the person, as the case may be; or
(ii) the ability of the Secretary to give notices to the nominee under this Act; or
(iii) the ability of the nominee to comply with notices given to the nominee by the Secretary under this Act.
(2) Subject to subsection (3), a notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post or by any other means approved by the Secretary; and
(c) must specify how the nominee is to give the information to the Department; and
(d) must specify the period within which the nominee is to give the information to the Department.
(3) A notice under subsection (1) is not ineffective merely because it fails to comply with paragraph (2)(c).
(4) Subject to subsection (5), the period specified under paragraph (2)(d) must not end earlier than 14 days after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the nominee becomes aware that the event or change of circumstances is likely to occur.
(5) If a notice requires the nominee to inform the Department of any proposal by the nominee to leave Australia, subsection (4) does not apply to that requirement.
(6) This section extends to:
(a) acts, omissions, matters and things outside Australia, whether or not in a foreign country; and
(b) all persons, irrespective of their nationality or citizenship.
219TK Statement by payment nominee regarding disposal of money
(1) The Secretary may give the payment nominee of a person a notice that requires the nominee to give the Department a statement about a matter relating to the disposal by the nominee of an amount paid to the nominee on behalf of the person.
(2) Subject to subsection (3), a notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post or by any other means approved by the Secretary; and
(c) must specify how the nominee is to give the statement to the Department; and
(d) must specify the period within which the nominee is to give the statement to the Department.
(3) A notice under subsection (1) is not ineffective merely because it fails to comply with paragraph (2)(c).
(4) The period specified under paragraph (2)(d) must not end earlier than 14 days after the day on which the notice is given.
(5) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary.
(6) A nominee must not refuse or fail to comply with a notice under subsection (1).
Penalty: 60 penalty units.
(7) Subsection (6) applies only to the extent to which the person is capable of complying with the notice.
(8) Subsection (6) does not apply if the person has a reasonable excuse.
(9) An offence against subsection (6) is an offence of strict liability.
(10) This section extends to:
(a) acts, omissions, matters and things outside Australia, whether or not in a foreign country; and
(b) all persons, irrespective of their nationality or citizenship.
Division 5—Other matters
219TL Protection of person against liability for actions of nominee
Nothing in this Part has the effect of rendering a person guilty of an offence against this Act in respect of any act or omission of the person’s correspondence nominee.
219TM Protection of nominee against criminal liability
(1) A nominee of a person is not subject to any criminal liability under the family assistance law in respect of:
(a) any act or omission of the person; or
(b) anything done, in good faith, by the nominee in his or her capacity as nominee.
(2) This section has effect subject to section 219TK.
219TN Duty of nominee to principal
(1) It is the duty of a person who is the payment or correspondence nominee of another person at all times to act in the best interests of the principal.
(2) A nominee does not commit a breach of the duty imposed by subsection (1) by doing an act if, when the act is done, there are reasonable grounds for believing that it is in the best interests of the principal that the act be done.
(3) A nominee does not commit a breach of the duty imposed by subsection (1) by refraining from doing an act if, at the relevant time, there are reasonable grounds for believing that it is in the best interests of the principal that the act be not done.
219TO Saving of Secretary’s powers of revocation
Nothing in this Part is to be taken to be an expression of a contrary intention for the purposes of subsection 33(3) of the Acts Interpretation Act 1901.
219TP Saving of Secretary’s powers to give notices to principal
Nothing in this Part is intended in any way to limit or affect the Secretary’s powers under other provisions of the family assistance law to give notices to, or make requirements of, a person who has a nominee.
219TQ Notification of nominee where notice given to principal
If, under a provision of the family assistance law (other than a provision of this Part), the Secretary gives a notice to a person who has a correspondence nominee, the Secretary may inform the correspondence nominee of the giving of the notice and of the terms of the notice.
219TR Right of nominee to attend with principal
(1) If:
(a) under a provision of the family assistance law (other than a provision of this Part), the Secretary gives a notice to a person who has a correspondence nominee; and
(b) the notice requires the person:
(i) to attend the Department; or
(ii) to attend a particular place; and
(c) the Secretary informs the person’s correspondence nominee of the giving of the notice;
the correspondence nominee may attend the Department or place, as the case may be, with the person if the person so wishes.
(2) If a person’s correspondence nominee is a body corporate, the last reference in subsection (1) to the correspondence nominee is to be read as a reference to an officer or employee of the correspondence nominee.
Part 8C—Regulatory powers
Division 1—Monitoring powers
219UA Monitoring powers
Provisions subject to monitoring
(1) The following provisions are subject to monitoring under Part 2 of the Regulatory Powers Act:
(a) a civil penalty provision;
(b) the following conditions for continued approval of an approved provider:
(i) subsections 195A(1), (2), (3) and (4);
(ii) subsection 195C(1);
(iii) subsection 195D(1);
(iv) section 195E;
(v) subsection 195F(1);
(vi) section 203A;
(c) paragraphs 197A(1)(b), (c) and (d);
(d) a listed child care information provision (see section 219UB).
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions have been complied with. It includes powers of entry and inspection.
Information subject to monitoring
(2) Information given in compliance or purported compliance with one or more of the listed child care information provisions (see section 219UB) is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.
Related provisions
(3) For the purposes of Part 2 of the Regulatory Powers Act, each of the following provisions is related to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):
(a) a provision of Division 6 of Part 3A that creates an offence;
(b) a provision of Part 8A that creates an offence;
(c) a provision of the Crimes Act 1914 or the Criminal Code that relates to this Act and creates an offence.
Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
(4) For the purposes of Part 2 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):
(a) the Secretary is the authorised applicant; and
(b) a person appointed under section 219UD is an authorised person; and
(c) each of the following is an issuing officer:
(i) a Judge of the Federal Circuit and Family Court of Australia (Division 2);
(ii) a Judge of the Federal Court of Australia;
(iii) a magistrate; and
(d) the Secretary is the relevant chief executive; and
(e) each of the following is a relevant court:
(i) the Federal Court of Australia;
(ii) the Federal Circuit and Family Court of Australia (Division 2).
Delegation by relevant chief executive
(5) The relevant chief executive may, in writing, delegate the power under section 35 of the Regulatory Powers Act to issue identity cards to authorised persons to an officer within the meaning of this Act.
(6) A person exercising powers or performing functions under a delegation under subsection (5) must comply with any directions of the relevant chief executive.
Person assisting
(7) An authorised person may be assisted by other persons (including members of an audit team) in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).
219UB Meaning of listed child care information provision
A provision listed in the table is a listed child care information provision.
Listed child care information provisions |
Item | Provision | Description |
1 | section 67FC | notice if child not at risk of serious abuse or neglect |
2 | section 67FH | request for information about care provided |
3 | subsection 154(3) | requirement to give information or produce a document that may be relevant to amount of ACCS (child wellbeing) an approved provider is entitled to be paid |
4 | subsection 154(4) | requirement to give information or produce a document that may be relevant to provider’s approval etc. |
5 | subsection 154(5) | requirement to produce records kept under section 202B or 202C |
6 | section 155, if the person who owes the debt is the provider of a child care service | requirement for debtor to give information etc. |
7 | section 156, if the person who owes the debt is the provider of a child care service | requirement for person to give information etc. in relation to a debtor |
8 | section 157, to the extent that the required information relates to ACCS (child wellbeing) for which a provider is or might be eligible | requirement for person to give information to verify claims etc. |
9 | section 157A | records supporting certificate under section 85CB (certification for ACCS (child wellbeing) |
10 | section 199C | notification of matters affecting approval |
11 | section 200A, including that section as it applies because of section 204H | enrolment notices |
12 | section 200D, including that section as it applies because of section 204H | updating enrolment notices |
13 | section 203A | financial information relating to large day care providers |
14 | section 204A | provider decides to stop operating an approved child care service |
15 | section 204B, including that section as it applies because of section 204H | reports in relation to enrolled children and others for whom care is provided |
16 | section 204C, including that section as it applies because of section 204H | dealing with inaccurate reports |
17 | section 204D | information about child care places |
18 | section 204E, including that section as it applies because of section 204H | further information about enrolled children |
19 | section 204F | notice of certain matters |
20 | a Minister’s rule made for the purposes of section 204G | requirements in relation to children who are members of a prescribed class |
219UC Modification of Part 2 of the Regulatory Powers Act
(1) Paragraph 18(2)(a) of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection 219UA(1) and the information mentioned in subsection 219UA(2), is taken to include a reference to a person who apparently represents the occupier.
(2) If the consent referred to in paragraph 18(2)(a) of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection 219UA(1) and the information mentioned in subsection 219UA(2), is given by a person who apparently represents the occupier, references in the following provisions of the Regulatory Powers Act to the occupier are taken to be references to the person:
(a) subparagraph 20(4)(b)(ii);
(b) subsection 24(2);
(c) section 25;
(d) subsection 29(4).
219UD Appointment of authorised persons
(1) The Secretary may, in writing, appoint any of the following as an authorised person for the purposes of this Act:
(a) a person who holds, or performs the duties of, an appointment, office or position under a law of the Commonwealth or of a State or Territory;
(b) an employee of an authority of the Commonwealth or of a State or Territory;
(c) a person performing services for the Commonwealth under a contract with the Commonwealth.
(2) The Secretary must not appoint a person as an authorised person unless the Secretary is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an authorised person.
(3) An authorised person must, in exercising powers as such, comply with any directions of the Secretary.
(4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.
Division 2—Civil penalties
219VA Civil penalty provisions
Enforceable civil penalty provisions
(1) Each civil penalty provision of this Act and the Family Assistance Act is enforceable under Part 4 of the Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
(2) For the purposes of Part 4 of the Regulatory Powers Act, the Secretary is an authorised applicant in relation to the civil penalty provisions in this Act.
Relevant court
(3) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:
(a) the Federal Court of Australia;
(b) the Federal Circuit and Family Court of Australia (Division 2).
219VB Requirement for person to assist with applications for civil penalty orders
(1) A person commits an offence if:
(a) the Secretary requires, in writing, the person to give all reasonable assistance in connection with an application for a civil penalty order; and
(b) the person fails to comply with the requirement.
Penalty: 10 penalty units.
(2) A requirement made under subsection (1) is not a legislative instrument.
(3) The Secretary may require a person to assist under subsection (1) only if:
(a) it appears to the Secretary that the person is unlikely to have:
(i) contravened the civil penalty provision to which the application relates; or
(ii) committed an offence constituted by the same, or substantially the same, conduct as the conduct to which the application relates; and
(b) the Secretary suspects or believes that the person can give information relevant to the application.
(4) The Secretary cannot require a person to assist under subsection (1) if the person is or has been a lawyer for the person suspected of contravening the civil penalty provision to which the application relates.
(5) The Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) may order a person to comply with a requirement under subsection (1) in a specified way. Only the Secretary may apply to the court for an order under this subsection.
(6) For the purposes of this section, it does not matter whether the application for the civil penalty provision has actually been made.
Note: Subsection (1) does not abrogate or affect the law relating to legal professional privilege, or any other immunity, privilege or restriction that applies to the disclosure of information, documents or other things.
Division 3—Infringement notices
219WA Infringement notices
Provisions subject to an infringement notice
(1) A civil penalty provision of this Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act.
Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
Infringement officer
(2) For the purposes of Part 5 of the Regulatory Powers Act, a person appointed under subsection (3) is an infringement officer in relation to the provisions mentioned in subsection (1).
(3) The Secretary may, in writing, appoint an officer of the Department as an infringement officer for the purposes of this Act.
Relevant chief executive
(4) For the purposes of Part 5 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the provisions mentioned in subsection (1).
(5) The relevant chief executive may, in writing, delegate the powers and functions of the relevant chief executive under Part 5 of the Regulatory Powers Act to an officer within the meaning of this Act.
Single infringement notice may deal with more than one contravention
(6) Despite subsection 103(3) of the Regulatory Powers Act, a single infringement notice may be given to a person in respect of:
(a) 2 or more alleged contraventions of a provision mentioned in subsection (1); or
(b) alleged contraventions of 2 or more provisions mentioned in subsection (1).
However, the notice must not require the person to pay more than one amount in respect of the same conduct.
Division 4—General rules about offences and civil penalty provisions
219XA Physical elements of offences
(1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct rule provision) commits an offence.
(2) For the purposes of applying Chapter 2 of the Criminal Code to the offence, the physical elements of the offence are set out in the conduct rule provision.
Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.
219XB Contravening an offence provision or a civil penalty provision
(1) This section applies if a provision of this Act provides that a person contravening another provision of this Act (the conduct provision) commits an offence or is liable to a civil penalty.
(2) For the purposes of this Act, and the Regulatory Powers Act to the extent that it relates to this Act, a reference to a contravention of an offence provision or a civil penalty provision includes a reference to a contravention of the conduct provision.
Part 9—Other matters
220 General administration of family assistance law
The Secretary is, subject to any direction of the Minister, to have the general administration of the family assistance law.
220A Minister requiring person to assist in criminal proceedings
(1) A person commits an offence if:
(a) the Minister requests, in writing, the person to give all reasonable assistance in connection with criminal proceedings for an offence against this Act; and
(b) the person fails to comply with the request.
Penalty: 10 penalty units.
Note: This section does not abrogate or affect the law relating to legal professional privilege, or any other immunity, privilege or restriction that applies to the disclosure of information, document or other things.
(2) A request under subsection (1) is not a legislative instrument.
(3) The Minister can request a person to assist under subsection (1) if, and only if:
(a) it appears to the Minister that the person is unlikely:
(i) to be a defendant in the proceedings; or
(ii) to have contravened a civil penalty provision constituted by the same, or substantially the same, conduct as the conduct to which the proceedings relates; and
(b) the Minister suspects or believes that the person can give information relevant to the proceedings.
(4) The Minister cannot request a person to assist under subsection (1) if the person is or has been a lawyer for a defendant or likely defendant in the proceedings.
(5) A court may order a person to comply with a request under subsection (1) in a specified way. Only the Minister may apply to the court for an order under this subsection.
(6) For the purposes of this section, it does not matter whether criminal proceedings for the offence have actually begun.
(7) In this section:
offence against this Act includes an offence against Chapter 7 of the Criminal Code that relates to this Act.
221 Delegation
Delegation to officers
(1) Subject to this section, the Secretary may delegate to an officer all or any of the powers of the Secretary under the family assistance law, other than:
(a) the power to make Secretary’s rules under subsection 85GB(2) of the Family Assistance Act; and
(b) the power to engage an expert to carry out an independent audit as mentioned in section 203C of this Act.
(3) The Secretary must not delegate the Secretary’s power under subparagraph 168(1)(b)(i) (disclosure of information) except to the Human Services Secretary, the Chief Executive Centrelink or the Chief Executive Medicare.
(4) The Secretary must not delegate to an officer, other than an SES employee or acting SES employee, the Secretary’s powers under:
(a) section 203A (power to require financial information);
(b) subsection 219UD(1) (power to appoint authorised person);
(c) subsection 219WA(3) (power to appoint infringement officer).
Funding agreements
(5) The Secretary may delegate to an official of a non‑corporate Commonwealth entity the Secretary’s powers under section 85GA of the Family Assistance Act.
(6) In exercising a power delegated under subsection (5), an official must comply with any directions of the Secretary.
Note: For non‑corporate Commonwealth entity and official, see subsection 3(1).
221A Committees
(1) The Minister may in writing establish committees for the purposes of the family assistance law.
Functions
(2) A committee has the functions determined in writing by the Minister.
(3) A committee must, in performing its functions, comply with any directions given to the committee by the Minister.
Appointments
(4) A committee consists of the members appointed in writing by the Minister.
(5) A member of a committee holds office on a part‑time basis.
Chair
(6) The Minister may designate a member of a committee as the Chair of the committee.
Remuneration and allowances
(7) A member of a committee is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the regulations.
(8) A member of a committee is to be paid the allowances that are prescribed by the regulations.
(9) Subsections (7) and (8) have effect subject to the Remuneration Tribunal Act 1973.
Disclosure of interests
(10) A member of a committee must give written notice to the Minister of any direct or indirect pecuniary interest that the member has or acquires and that conflicts or could conflict with the proper performance of the member’s functions.
Resignation
(11) A member of a committee may resign his or her appointment by giving the Minister a written resignation.
Termination
(12) The Minister may at any time terminate the appointment of a member of a committee.
222 Decisions to be in writing
(1) A decision of the Minister or of an officer under the family assistance law must be in writing.
(2) Such a decision is taken to be in writing if it is made, or recorded, by means of a computer.
223 Secretary may arrange for use of computer programs to make decisions
(1) The Secretary may arrange for the use, under the Secretary’s control, of computer programs for any purposes for which the Secretary or any other officer may make decisions under the family assistance law.
Note: The definition of decision in subsection 3(1) covers the doing of any act or thing. This means, for example, that the doing of things under subsection 162(1) or (2) are decisions for the purposes of this section.
(2) A decision made by the operation of a computer program under an arrangement made under subsection (1) is taken to be a decision made by the Secretary.
224 Notice of decisions
Decisions about entitlement to family assistance
(1) Notice of a decision of an officer affecting a person’s eligibility for, or entitlement to be paid, family assistance under the family assistance law is taken, for the purposes of the family assistance law, to have been given to the person if the notice is:
(a) delivered to the person personally; or
(b) left at the address of the place of residence or business of the person last known to the Secretary; or
(c) sent by post to the address of the person last known to the Secretary.
Decisions about approval of providers of child care services
(2) Notice of a decision of an officer under Part 8 is taken to have been given to a provider if the notice is:
(a) left at the address of the place of business of the provider last known to the Secretary; or
(b) sent by post to the address of the provider last known to the Secretary; or
(c) sent by email to the last known email address of the provider; or
(d) sent by other electronic means to the provider.
Service by post
(3) A notice referred to in subsection (1) or (2) is taken to have been sent by post if the notice giver properly addresses, prepays and posts the notice as a letter. Unless the contrary is proved, the notice is taken to have been given to the person to whom it is addressed at the time the letter would be delivered in the ordinary course of post.
225 Payment of deductions to Commissioner of Taxation
The Secretary must, in accordance with section 218 of the Income Tax Assessment Act 1936, or Subdivision 260‑A in Schedule 1 to the Taxation Administration Act 1953, for the purpose of enabling the collection of an amount that is, or may become, payable by a recipient of a payment under this Act:
(a) make deductions from the instalments of, or make a deduction from, the payment; and
(b) pay the amount deducted to the Commissioner of Taxation.
This section does not apply to a payment of child care subsidy or additional child care subsidy.
226 Setting off family assistance entitlement against tax liability
(1) If:
(a) a person is entitled to an amount of family assistance (other than child care subsidy or additional child care subsidy); and
(b) the person is liable for an amount of primary tax;
the Commissioner of Taxation may determine that the whole or a part of the entitlement is to be set off against the liability.
(2) If the Commissioner of Taxation does so:
(a) the amount of the entitlement and the amount of the liability are reduced accordingly; and
(b) the person is taken to have paid so much of the amount of the tax as is equal to the amount set off against the tax liability at the time when the Commissioner sets off the amount or at any earlier time that the Commissioner determines.
(3) This section has effect in spite of anything in any other Act or any other law of the Commonwealth.
227 Payment of deductions to Child Support Registrar
(1) The Secretary must, in accordance with a notice given to the Secretary under subsection 72AB(3) of the Child Support (Registration and Collection) Act 1988 in relation to a person:
(a) make deductions from instalment amounts of family tax benefit that the person is entitled to be paid under section 23; or
(b) make a deduction from an amount of family tax benefit that the person is entitled to be paid under section 24;
and pay amounts so deducted to the Child Support Registrar.
(2) However, the Secretary must not deduct an amount under subsection (1) in contravention of section 228.
(3) If the Secretary deducts an amount under subsection (1), then:
(a) on the day the amount is deducted, the total amount of the child support debts or carer debts of the person (being debts referred to in subsection 72AB(2) of the Child Support (Registration and Collection) Act 1988) is taken to be reduced by an amount equal to the amount deducted; and
(b) on the day the amount is deducted, the person is taken to have been paid an amount of family tax benefit equal to the amount deducted.
(4) A deduction under subsection (1) may result in the family tax benefit that the person is entitled to be paid being reduced to nil.
228 Maximum deduction
(1) This section applies if a notice is given under subsection 72AB(3) of the Child Support (Registration and Collection) Act 1988 to a person that specifies:
(a) an amount to be deducted from family tax benefit that the person is entitled to be paid on a day or days specified in the notice; or
(b) a method of working out such an amount.
(2) The amount deducted on a particular day must not exceed the total amount of the child support debts of the person on that day, being debts referred to in subsection 72AB(2) of the Child Support (Registration and Collection) Act 1988.
(3) If, on a day specified in the notice, the person has at least one FTB child, or one regular care child who is also a rent assistance child, for whom the person is eligible for family tax benefit who is not a designated child support child of the person, the amount deducted on that day must not exceed the difference between:
(a) the amount of family tax benefit that the person is entitled to be paid on that day; and
(b) the amount of family tax benefit that the person would be entitled to be paid on that day, assuming that each designated child support child of the person was neither an FTB child, nor a regular care child, of the person on that day.
(4) If, on a day specified in the notice:
(a) each FTB child, and each regular care child who is also a rent assistance child, for whom the person is eligible for family tax benefit is a designated child support child of the person; and
(b) an income support payment or an income support supplement is payable to the person;
the amount deducted on that day must not exceed the difference between:
(c) the amount of family tax benefit that the person is entitled to be paid on that day; and
(d) the forgone amount in respect of the person’s income support payment or income support supplement.
(5) For the purposes of subsection (4), the forgone amount, in respect of a person’s income support payment or income support supplement, is the amount that represents the difference between:
(a) the amount of the income support payment or the income support supplement that would have been payable to the person if the person had not been entitled to be paid family tax benefit on that day; and
(b) the amount of the income support payment or the income support supplement payable to the person on that day.
(6) In this section:
designated child support child of a person has the same meaning as in section 72AB of the Child Support (Registration and Collection) Act 1988.
income support payment has the same meaning as in the Social Security Act 1991.
income support supplement has the same meaning as in Part IIIA of the Veterans’ Entitlements Act 1986.
228A Payment of other deductions on request
(1) This section applies if a person asks the Secretary:
(a) to make deductions from an instalment of an amount, or from an amount, payable to the person under this Act (other than child care subsidy or additional child care subsidy); and
(b) to pay the amounts deducted to a business or organisation nominated by the person.
(2) The Secretary may make the deductions requested by the person, and if the Secretary does so, the Secretary must pay the amounts deducted to the business or organisation nominated by the person.
229 Judicial notice of certain matters
(1) All courts are to take judicial notice of a signature that purports to be attached or appended to any official document produced under the family assistance law, if the signature is of a person who is or has been an officer.
(2) If the signature of a person referred to in subsection (1) purports to be attached or appended to any official document produced under the family assistance law, all courts are to take judicial notice of the fact that the person is, or has been, an officer.
230 Documentary evidence
(1) If the signature of any person who is or has been an officer purports to be attached or appended to any official document, the document is to be received in all courts as prima facie evidence of the facts and statements contained in it.
(2) A statement in writing signed by a person referred to in subsection (1) that another person is or was entitled to, or had received, a payment under this Act on a certain date and of a certain amount is to be received in all courts as prima facie evidence that the person is or was entitled to, or had received, the payment on the date, and of the amount, stated.
230A Application of family assistance law to providers that are partnerships
(1) The family assistance law applies to a partnership as if it were a person, but with the changes set out in this section.
(2) An obligation that would otherwise be imposed on the partnership by the family assistance law is imposed on each partner instead, but may be discharged by any of the partners.
(3) A permission that would otherwise be conferred on the partnership by the family assistance law is conferred on each partner instead, but may be exercised by any of the partners.
(4) An offence against the family assistance law that would otherwise have been committed by the partnership is taken to have been committed by each partner in the partnership, at the time the offence was committed, who:
(a) did the relevant act or made the relevant omission; or
(b) aided, abetted, counselled or procured the relevant act or omission; or
(c) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).
(5) This section applies to a contravention of a civil penalty provision in a corresponding way to the way in which it applies to an offence.
(6) For the purposes of the family assistance law, a change in the composition of a partnership does not affect the continuity of the partnership.
(7) The Minister’s rules may make provision in relation to the application of the family assistance law to a partnership, to the extent to which this section and section 231 do not do so.
230B Application of family assistance law to providers that are unincorporated
(1) The family assistance law applies to an unincorporated entity or body, other than a partnership, as if it were a person, but with the changes set out in this section.
(2) An obligation that would otherwise be imposed on the entity or body by the family assistance law is imposed on each member of the entity or body’s governing body instead, but may be discharged by any of the members.
(3) A permission that would otherwise be conferred on the entity or body by the family assistance law is conferred on each member of the entity or body’s governing body instead, but may be exercised by any of the members.
(4) An offence against the family assistance law that would otherwise have been committed by the entity or body is taken to have been committed by each member of the entity or body’s governing body, at the time the offence was committed, who:
(a) did the relevant act or made the relevant omission; or
(b) aided, abetted, counselled or procured the relevant act or omission; or
(c) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the member).
(5) This section applies to a contravention of a civil penalty provision in a corresponding way to the way in which it applies to an offence.
(6) The Minister’s rules may make provision in relation to the application of the family assistance law to an unincorporated entity or body, to the extent to which this section and section 231 do not do so.
231 Application of family assistance law to unincorporated bodies
(1) The family assistance law applies to an unincorporated body or association (the body) as if it were a person other than an individual, but it applies with the following 3 changes.
Imposition of obligations
(2) The first change is that obligations that would be imposed on the body are imposed instead on:
(a) if the body is a partnership—each partner; or
(b) in any other case—each member of the committee of management of the body;
but they may be discharged by any of the partners or any of those members.
Permissions
(2A) A permission that would otherwise be conferred on the body by the family assistance law is conferred on:
(a) if the body is a partnership—each partner instead; and
(b) otherwise—each member of the entity or body’s governing body instead;
but may be exercised by any of those partners or members.
Commission of offences
(3) The second change is that any offence against this Act that would otherwise be committed by the body is taken instead to have been committed by:
(a) if the body is a partnership—any partner:
(i) who was knowingly concerned in, or party to, the relevant act or omission; or
(ii) who aided, abetted, counselled or procured the relevant act or omission; or
(b) in any other case—any member of the committee of management of the body:
(i) who was knowingly concerned in, or party to, the relevant act or omission; or
(ii) who aided, abetted, counselled or procured the relevant act or omission.
Contravention of civil penalty provisions
(4) The third change is that any contravention of a civil penalty provision that would otherwise be committed by the body is taken instead to have been committed by:
(a) if the body is a partnership—any partner:
(i) who was knowingly concerned in, or party to, the relevant contravention; or
(ii) who aided, abetted, counselled or procured the relevant contravention; or
(b) in any other case—any member of the committee of management of the body:
(i) who was knowingly concerned in, or party to, the relevant contravention; or
(ii) who aided, abetted, counselled or procured the relevant contravention.
Interaction with sections 230A and 230B
(5) Section 230A or 230B applies instead of this section if:
(a) apart from this subsection, both section 230A or 230B and this section would apply to a situation; and
(b) in the situation, the family assistance law:
(i) expressly refers to a provider or an approved provider; or
(ii) operates in relation to a body that is applying to become, is, or has been, an approved provider.
232 Annual report
(1) As soon as practicable after 30 June in each year, the Secretary must give the Minister a written report on the administrative operation of the family assistance law during the financial year that ended on that 30 June.
(2) The Minister is to cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.
233 Appropriation
(1) Payments under this Act are to be made out of the Consolidated Revenue Fund, which is appropriated accordingly.
(2) However, subsection (1) does not apply to a payment of an amount under an agreement entered into under section 85GA (funding agreements) of the Family Assistance Act unless the payment is for a purpose prescribed by the Minister’s rules.
Note: The purposes that may be prescribed by the Minister’s rules are limited by subsection 85GA(1) of the Family Assistance Act.
(3) The Minister’s rules must prescribe the total amount that may be paid in respect of a financial year under subsection (1) because of subsection (2).
(4) Minister’s rules for the purposes of subsection (3) for a financial year:
(a) must be made before the start of the financial year; and
(b) may be varied at any time before the financial year ends.
(5) The Minister’s rules may prescribe the total amount that may be paid in respect of a financial year under subsection (1) because of subsection (2) for a purpose prescribed by the Minister’s rules made for the purposes of subsection (2).
234 Agreements on administrative arrangements
(1) The Secretary and the Principal Member may agree on administrative arrangements to further the objectives of Division 2 of Part 5.
(2) The Secretary and the Commissioner of Taxation may agree on administrative arrangements to further the objectives of this Act.
235 Regulations
(1) The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient for carrying out or giving effect to this Act.
Offences and civil penalties
(1A) Without limiting subsection (1), the regulations may:
(a) prescribe penalties for offences against the regulations that do not exceed a fine of 10 penalty units; and
(b) declare that specified provisions of the regulations are civil penalty provisions, and prescribe penalties for contraventions of such provisions that do not exceed:
(i) for a body corporate—250 penalty units; or
(ii) in any other case—50 penalty units.
Fees
(2) Without limiting subsection (1), the regulations may prescribe fees for the making of applications under section 194 or 207. Any such fees must not be such as to amount to taxation.
Proof of making of claims etc.
(3) Without limiting subsection (1), if a provision of the family assistance law provides that the Secretary or another officer may approve:
(a) the form or manner of making or withdrawing any application or claim; or
(b) the way of doing any other thing that is required or permitted to be done for the purposes of that law;
the regulations may make provision for the proof of the making or withdrawing of the application or claim, or the doing of the other thing, for the purposes of any legal proceedings.
Date of effect of review decisions
(4) Without limiting subsection (1), the regulations may provide that specified decisions by:
(a) the Secretary under any provision of this Act; or
(b) an authorised review officer or the Administrative Appeals Tribunal, under Part 5;
that have the effect of creating or increasing an entitlement to be paid family tax benefit by instalment, only have effect from a specified day before the making of the decisions.
