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Schedule 2—Amendments relating to ensuring the integrity of the child care subsidy system

Schedule 2 Amendments relating to ensuring the integrity of the child care subsidy system

   

A New Tax System (Family Assistance) (Administration) Act 1999

1  Subsection 3(1)

Insert:

Education and Care Services National Law means the Education and Care Services National Law set out in the Schedule to the Education and Care Services National Law Act 2010 (Vic.).

2  Sections 71F and 71G

Repeal the sections, substitute:

71F   Debts in respect of CCS or ACCS for individual—provider at fault

                   If:

                     (a)  an individual is paid an amount of CCS or ACCS for one or more sessions of care provided by a child care service of a provider; and

                     (b)  all or part of the amount (the attributable amount ) is paid to the individual because the provider has:

                              (i)  made a false or misleading statement; or

                             (ii)  failed to comply with the family assistance law; and

                     (c)  the individual incurs a debt under subsection 71B(1) or 71C(1) that is wholly or partly comprised of the attributable amount;

then:

                     (d)  the individual is taken not to have incurred as a debt under subsection 71B(1) or 71C(1) so much of the amount of the debt as is equal to the attributable amount; and

                     (e)  the attributable amount is instead a debt due to the Commonwealth by the provider.

71G   Debts where provider approval is suspended cancelled or varied

             (1)  If:

                     (a)  an amount is paid to a provider under the family assistance law; and

                     (b)  before the payment is made:

                              (i)  the provider’s approval, or the provider’s approval in respect of a service, is suspended by operation of section 197AB; or

                             (ii)  the provider’s approval is cancelled by operation of subsection 197L(1); or

                            (iii)  the provider’s approval is varied to remove a service from the approval by operation of subsection 197L(3); and

                     (c)  because of that suspension, cancellation or variation, the recipient should not have been paid the amount;

the amount paid is a debt due to the Commonwealth by the provider.

             (2)  If:

                     (a)  a fee reduction amount is paid to a provider under section 67EB in relation to a session of care provided by a child care service of the provider on a day; and

                     (b)  after the payment is made, one of the following events occurs and takes effect on or before the day:

                              (i)  the provider’s approval is cancelled or suspended (other than by operation of section 197AB or subsection 197L(1));

                             (ii)  the provider’s approval is varied to remove the service from the approval (other than by operation of subsection 197L(3));

                            (iii)  the provider’s approval in respect of the service is suspended (other than by operation of section 197AB);

so much of the fee reduction amount as relates to the session of care is a debt due to the Commonwealth by the provider.

3  Paragraph 73(a)

After “AAT second review”, insert “or AAT single review”.

4  At the end of subsection 109D(6)

Add:

Note:          Applications by providers for review of decisions made under Division 2 of Part 4 relating to CCS or ACCS or decisions made under Part 8 are subject to the time limits set out in section 109DA.

5  Section 109DA

Repeal the section, substitute:

109DA   Review applications—time limits on certain applications by providers

             (1)  An application by a provider for review under subsection 109A(1) of a decision made under Division 2 of Part 4 relating to CCS or ACCS must be made no later than:

                     (a)  52 weeks after the provider is notified of the decision; or

                     (b)  if the provider was not notified of the decision—52 weeks after the provider becomes aware of the decision.

             (2)  An application by a provider for review under subsection 109A(1B) of a decision made under Part 8 (approval of providers of child care services) must be made no later than:

                     (a)  14 days after the provider is notified of the decision; or

                     (b)  if the provider was not notified of the decision—14 days after the provider becomes aware of the decision.

6  Subsection 111A(1)

After “other than a decision”, insert “covered by subsection (3A) or”.

7  After subsection 111A(3)

Insert:

52 week time limit for certain provider debt decisions

          (3A)  An application by a provider for AAT first review in respect of a decision under Division 2 of Part 4 relating to CCS or ACCS must be made no later than:

                     (a)  52 weeks after the provider is notified of the decision; or

                     (b)  if the provider was not notified of the decision—52 weeks after the provider becomes aware of the decision.

          (3B)  Subsection (3A) applies despite paragraph 29(1)(d) and subsections 29(7) to (10) of the AAT Act.

8  Paragraph 111A(5)(b)

After “Division 2 of Part 4”, insert “(other than a decision referred to in subsection (3A))”.

9  Paragraph 138(1)(a)

After “in relation to a provider”, insert “(other than a decision made under section 197H or 197J)”.

10  Subsection 138(3)

After “in relation to a provider”, insert “(other than a decision under section 197H or 197J)”.

11  Subsection 161(1B)

Repeal the subsection.

12  Paragraph 162(2)(dae)

Repeal the paragraph, substitute:

                  (dae)  for the purposes of the Education and Care Services National Law; or

13  Subsection 194B(5)

Repeal the subsection, substitute:

             (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.

14  Section 195D

Repeal the section, substitute:

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.

15  Subsection 196B(3)

Repeal the subsection, substitute:

             (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.

16  Section 197A (heading)

Repeal the heading, substitute:

197A   Immediate suspension after Secretary’s decision

17  After section 197A

Insert:

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.

             (2)  Subsection (1) does not apply if the provider approval is voluntarily suspended under section 37 of the Education and Care Services National Law.

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.

             (4)  Subsection (3) does not apply if the service approval is voluntarily suspended under section 85 of the Education and Care Services National Law.

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.

18  Section 197B

Repeal the section, substitute:

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).

19  Paragraph 197F(1)(b)

Repeal the paragraph, substitute:

                     (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.

20  Paragraph 197G(1)(b)

Repeal the paragraph, substitute:

                     (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)  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.

21  At the end of section 197H

Add:

             (3)  In this section:

ceases to operate has the meaning given by the Minister’s rules.

22  At the end of section 197J

Add:

             (3)  In this section:

ceases to operate has the meaning given by the Minister’s rules.

23  At the end of Division 4 of Part 8

Add:

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.

24  Subsection 199A(1)

Omit “section 197D or 197E”, substitute “section 197B, 197D or 197E”.

25  After paragraph 199B(1)(b)

Insert:

                   (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;

26  Subsection 199B(2)

Repeal the subsection, substitute:

             (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.

27  Application—debts arising from AAT stay orders

The amendment of section 73 of the A New Tax System (Family Assistance) (Administration) Act 1999 made by this Schedule applies in relation to an order made by the AAT under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 on or after the commencement of this item.

28  Application—time limit for application for review

The amendments of sections 109DA and 111A of the A New Tax System (Family Assistance) (Administration) Act 1999 made by this Schedule apply in relation to a decision made under Division 2 of Part 4 of that Act relating to CCS or ACCS on or after the commencement of this item.

29  Application—decisions for which AAT single review may be sought

The amendments of section 138 of the A New Tax System (Family Assistance) (Administration) Act 1999 made by this Schedule do not apply in relation to a decision made under section 197H or 197J of that Act if the provider applies to the AAT for review of the decision under section 138 of that Act before the commencement of this item.