Child Care Benefit (Eligibility of Child Care Services for Approval and Continued Approval) Determination 2000

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Child Care Benefit (Eligibility of Child Care Services for Approval and Continued Approval) Determination 2000

made under subsection 205(1) of the

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

Compilation No. 14

Compilation date: 13 March 2017

Includes amendments up to: Child Care Benefit (Eligibility of Child Care Services for Approval and Continued Approval) Amendment Determination 2017

About this compilation

This compilation

This is a compilation of the Child Care Benefit (Eligibility of Child Care Services for Approval and Continued Approval) Determination 2000 that shows the text of the law as amended and in force on 13 March 2017 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Page

Part 1 Preliminary 4

1 Citation [see Note 1] 4

2 Commencement [see Note 1] 4

3 Interpretation 4

5 Review of decisions 6

Part 2 Eligibility for Approval 7

6 Approval rules 7

7 Suitability of applicant 7

8 Suitability of staff 9

9 Family day care services and in-home care services: suitability of carers 9

10 Provision of care 9

10A Family day care services: additional requirements 11

10AB Family day care services—additional requirements relating to care 14 provided to a child who is 14 years of age or older, or attends secondary school,

but has not yet turned 18

11 Compliance with child care laws 15

12 Insurance 15

13 Priority of access 15

14C Capacity to use electronic interface 16

Part 3 Eligibility for Continued Approval 17

15 Continued approval rules 17

16 Continuing compliance with Part 2 17

16A Compliance with undertakings — general 17

16B Approved in-home care services — compliance with certain undertakings 18

17 Former childcare assistance agreement services 18

18 Continuity of operator 19

19 Notifiable events 19

20 Inspection 20

21 Information regarding child care services 20

21A Approval by Secretary 21

22 Personal information 21

24 Family day care services and in-home care services: in-home care agreement 21

25 24 hour care 22

26 Change of location 22

27 Standard hours family day care and standard hours in-home care 22

SCHEDULE 24

Endnotes 25

Part 1 Preliminary

1 Citation [see Note 1]

This determination may be cited as the Child Care Benefit (Eligibility of Child Care Services for Approval and Continued Approval) Determination 2000.

2 Commencement [see Note 1]

This determination commences on 1 July 2000, immediately after the commencement of Schedule 6 to the A New Tax System (Family Assistance and Related Measures) Act 2000.

3 Interpretation

In this determination:

the Act means the A New Tax System (Family Assistance) (Administration) Act 1999;

applicant means a person who applies under section 194 of the Act for approval of a child care service for the purposes of the family assistance law;

care date, for a child in respect of an approved family day care service, means the later of:

(a) the date on which the Child Care Benefit (Children in respect of whom no-one is eligible) Determination 2015 commences; or

(b) the date the child is enrolled by an individual for care by the service.

carer means a person employed, contracted or otherwise engaged by a family day care service or an in-home care service to provide child care;

CRN means the active customer reference number issued by the Department of Human Services.

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 of Victoria.

electronic interface means electronic equipment, the use of which is approved by the Secretary or another officer, under a provision of the family assistance law to which subsection 4 (1) of the Act relates, as the form, manner or way of:

(a) making an application or claim that the service is required or permitted to make under a provision of the family assistance law; or

(b) withdrawing an application or claim that the service is required or permitted to withdraw under a provision of that law; or

(c) doing any other thing that the service is required or permitted to do under a provision of that law; or

(d) giving notices by the Secretary under a provision of that law.

eligible disability child has the same meaning as in the Child Care Benefit (Children in respect of whom no-one is eligible) Determination 2015.

eligible ISP child has the same meaning as in the Child Care Benefit (Children in respect of whom no-one is eligible) Determination 2015.

eligible individual means an individual whom the Secretary has determined to be conditionally eligible for child care benefit by fee reduction in respect of a child, under section 50F of the Act.

FDC carer means an individual who is employed, contracted or otherwise engaged by an approved family day care service to provide care to a child on behalf of the service.

IHC carer has the same meaning as in the Child Care Benefit (Children in respect of whom no-one is eligible) Determination 2015;

FDC child means a child who is enrolled for care by an approved family day care service and who is the FTB child or regular care child of an FDC carer or the partner of an FDC carer.

Inclusion Support Programme means the program referred to in item 109 of Part 4 of Schedule 1AB to the Financial Framework (Supplementary Powers) Regulations 1997.

in-home care means child care provided by a carer, or an employee of an approved child care service, in the home of one of the children being cared for;

key personnel of an applicant for approval of a child care service or operator of an approved child care service means:

(a)an officer (within the meaning given by section 9 of the Corporations Act 2001) of the applicant or operator; and

(b)a member of the group of people that is responsible for the executive decisions of the applicant or operator; and

(c) any other person who is concerned in, or who takes part in, the management of the applicant or operator; and

(d)any person who, under an arrangement with the applicant or operator, manages or supervises the child care service.

registered software means software registered by the Secretary under subsection 4 (3) of the Act.

Regulatory Authority has the same meaning as in the Education and Care Services National Law.

remote area child has the same meaning as in the Child Care Benefit (Children in respect of whom no-one is eligible) Determination 2015.

service approval has the same meaning as in the Education and Care Services National Law.

Service Provider Personnel ID means a unique alphanumeric identifier in registered software identifying an individual.

Note: See also paragraph 10(1A)(g) of this determination.

5 Review of decisions

A decision of an officer under this determination, other than a decision under subsection 12(3), section 21 or section 21A, is reviewable for the purposes of section 108 of the A New Tax System (Family Assistance) (Administration) Act 1999.

Part 2 Eligibility for Approval

6 Approval rules

The following provisions of this Part are rules that a child care service must satisfy in order to become approved for the purposes of the family assistance law.

7 Suitability of applicant

(1) The applicant must be a suitable person to operate a child care service.

(2) In making an assessment for subsection (1), the Secretary may consider the following matters:

Matters relevant to management of child care services

(a) the applicant’s expertise and experience in providing child care;

(b) the applicant’s ability to meet and provide the appropriate quality of child care;

(c) the applicant’s governance arrangements, including:

(i) any arrangements with other persons for the management or supervision of the child care service; and

(ii) any arrangements to ensure compliance by the applicant, or any person the applicant is, or will be, responsible for managing, with the laws and standards mentioned in paragraphs (d) through to (f);

Matters relevant to capacity to comply with all laws and standards

(d) the applicant’s understanding of obligations that would apply to it under the family assistance law, and commitment to complying with these obligations;

(e) the applicant’s record of compliance with any laws of the Commonwealth or a State or Territory;

(f) the applicant’s record of compliance with any quality standards relating to child care services;

Matters relevant to management of financial affairs

(g) the applicant’s record of financial management, including:

(i) any instances of bankruptcy, insolvency or external administration involving the applicant; and

(ii) any debts due to the Commonwealth by the applicant (whether or not the debt has been discharged);

(iii) the applicant’s record of administering of Commonwealth, State or Territory funds;

Matters relevant to previous conduct, charges and convictions etc.

(h) any relevant criminal charges against the applicant;

(i) any proceedings currently before a court or tribunal that involve the applicant;

(j) any order for the applicant to pay a pecuniary penalty for the contravention of a civil penalty provision of a law of the Commonwealth or a State or Territory;

(k) any decision under a law of the Commonwealth or a State or Territory relating to child care which adversely affects the applicant;

(l) subject to Part VIIC of the Crimes Act 1914, any conviction or finding of guilt against the applicant for an offence against a law of the Commonwealth or a State or Territory (including an offence against children, or relating to dishonesty or violence);

(m) any act of the applicant involving fraud or dishonesty;

Other matters

(n) any other matter relevant to the suitability of the applicant.

(3) In making the assessment for subsection (1), the Secretary may also consider the matters mentioned in subsection (2) in relation to the following persons:

(a) any of the applicant’s previous, current or proposed key personnel; and

(b) any person connected with the applicant, who affects, or is likely to affect, the operation of the service by the applicant; and

(c) any person connected with any of the applicant’s previous, current or proposed key personnel, who affects, or is likely to affect, the operation of the service by the applicant.

Examples

In assessing whether an applicant is a suitable person to operate a child care service, the Secretary may consider such matters as:

(a) criminal convictions of the applicant’s key personnel;

(b) the record of financial management of the holding company of the applicant, or the bankruptcy of a proposed director of the applicant;

(c) the record of compliance with the family assistance law of a body corporate a director of which is one of the applicant’s key personnel.

(4) For the purposes of subsection (3), the reference to ‘person’ includes a reference to a partnership or an unincorporated body.

8 Suitability of staff

(1) The staff of the child care service must be suitable people to provide child care.

(2) The applicant must undertake that the service will take reasonable steps to ensure that the staff of the child care service are suitable people to provide child care.

(3) For the purposes of subsection (2), the child care service must undertake a check for the following:

(a) any relevant criminal charges against a staff member pending before a court;

(b) any relevant convictions or findings of guilt against a staff member for an offence.

(4) In considering whether a staff member is a suitable person to provide child care, the Secretary may consider any other matters relevant to the staff in addition to the matters mentioned in subsection (3).

9 Family day care and in-home care services: suitability of carers

(1) Where the applicant is applying for approval of a family day care service or an in-home care service, carers employed, contracted or otherwise engaged by the service must be suitable people to provide child care.

(2) The applicant must undertake that the service will take reasonable steps to ensure that carers employed, contracted or otherwise engaged by the service are suitable people to provide child care.

(3) For the purposes of subsection (2), the child care service must undertake a check for the following:

(a) any relevant criminal charges against the carer pending before a court;

(b) any relevant convictions or findings of guilt against the carer for an offence.

(4) In considering whether a carer is a suitable person to provide child care, the Secretary may consider any other matters relevant to the carer in addition to the matters mentioned in subsection (3).

10 Provision of care

(1) Where the applicant is applying for approval of a centre-based long day care service, the applicant must undertake that:

(a) most of the children to be provided with child care will:

(i) not have commenced school; and

(ii) attend the service at least one day a week;

(b) the service will operate on all normal working days in at least 48 weeks of the year;

(c) the service will be available to provide care for any particular child for at least 8 continuous hours on each normal working day on which it operates; and

(d) where a child attends a session of care, the service will not prevent the child from attending any part of that session.

(1A) Where the applicant is applying for approval of a family day care service, the applicant must undertake that:

(a) most of the children to be provided with care will attend the service at least one day a week; and

(b) the service will operate on all normal working days in at least 48 weeks of the year; and

(c) the service will be available to provide care for any particular child for at least 8 continuous hours on each normal working day on which it operates; and

(d) where a child attends a session of care, the service will not prevent the child from attending any part of that session; and

(e) the service’s FDC carers will only provide sessions of care on behalf of the service within the State or Territory in which the service has a current service approval; and

Note: The Secretary may, under paragraph 205(3)(a) of the Act, determine that the rule in paragraph (e) does not apply to a service – for example, the Secretary might determine this if a service is operating in a border town.

(f) if a service approval has been granted in relation to the service, the service will comply with any conditions imposed by the applicable Regulatory Authority to which the service approval is subject; and

Note: A service approval may be granted subject to conditions imposed by the Regulatory Authority: see paragraph 51(5)(b) of the Education and Care Services National Law.

(g) the service will ensure that:

(i) each of its FDC carers is listed as ‘service personnel’ and is assigned a Service Provider Personnel ID in the registered software; and

(ii) in each report given by the service in accordance with subsections 219N(1) or 219N(2) of the Act, the service includes the Service Provider Personnel ID for the FDC carer who provided the session or sessions of care that is or are the subject of the report; and

(h) as soon as the registered software the service uses allows the service to do so, the service will ensure that, for each of its FDC carers that has a CRN, the CRN is entered in the registered software.

(1B) Where the applicant is applying for approval of an in‑home care service, the applicant must undertake that:

(a) the service will provide in‑home care only to a child:

(i) to whom a circumstance mentioned in subsection (1C) applies; and

(ii) to whom only an in‑home care service can provide suitable care;

(b) the service will operate on all normal working days in at least 48 weeks of the year;

(c) the service will be available to provide care for any particular child for at least 8 continuous hours on each normal working day on which it operates; and

(d) where a child attends a session of care, the service will not prevent the child from attending any part of that session.

(1C) For subparagraph (1B) (a) (i), the circumstances are:

(a) the child, or any other child with whom the child lives, has an illness or disability;

(b) the individual in whose care the child is, or the individual’s partner (if any), has an illness or disability that reduces the individual’s, or the partner’s capacity to care for the child;

(c) the child lives in a rural or remote area;

(d) work hours of the individual in whose care the child is, or the individual’s partner (if any), are (or include) the hours during which no other approved child care service (other than an approved in‑home care service) operates that could otherwise provide care;

(e) the individual in whose care the child is or the individual’s partner (if any) is caring for three or more children (including the child) who have not yet commenced school; or

(g) any other circumstances determined by the Secretary in relation to the child.

(2) Where the applicant is applying for approval of an occasional care service, the applicant must undertake that:

(a) most of the children to be provided with child care will not have commenced school; and

(b) the service will operate for a maximum of 9 hours per day.

(3) Where the applicant is applying for approval of an outside school hours care service, the applicant must undertake that:

(a) most of the children to be provided with child care will be attending school;

(b) if the service provides before or after school care, the service will operate on each school day; and

(c) if the service provides vacation care, the service will be available to provide care for any particular child for at least 8 continuous hours on each normal working day for at least 7 weeks of school holidays in a year.

10A Family day care services: additional requirements

Where the applicant is applying for approval of a family day care service the applicant must undertake to do the following things:

(1) Within 7 days of the care date, the service will ensure that:

(a) each eligible individual is asked whether the eligible individual or the eligible individual’s partner is an FDC carer; and

(b) each eligible individual is asked to inform the service if, in the future, the eligible individual or the eligible individual’s partner becomes an FDC carer.

(2) If the service becomes aware (because of subsection (1) or for any other reason) that an eligible individual or their partner is an FDC carer, the service will, within 7 days of becoming aware, request the information or documents set out in subsection (4) from the eligible individual, if the eligible individual informs the service that in relation to one or more sessions of care the service has provided, is providing, or will provide, to the FDC child of the eligible individual or the eligible individual’s partner any of the following provisions in the Child Care Benefit (Children in respect of whom no-one is eligible) Determination 2015 apply:

(a) the FDC child is an eligible disability child;

(b) the FDC child is a remote area child;

(c) paragraph 8(2)(c) of the Child Care Benefit (Children in respect of whom no-one is eligible Determination) 2015 applies to the FDC carer in relation to sessions of care provided to the FDC child;

(d) paragraph 8(2)(d) of the Child Care Benefit (Children in respect of whom no-one is eligible Determination) 2015 applies to the FDC carer in relation to sessions of care provided to the FDC child.

(3) If the service becomes aware (because of subsection (1) or for any other reason) that an eligible individual or their partner is an FDC carer and the service is aware that, in relation to one or more sessions of care the service has provided, is providing, or will provide, to the FDC child of the eligible individual or the eligible individual’s partner, the child is an eligible ISS child, the service will:

(a) request from the eligible individual the information or documents set out in paragraphs (4)(a) to (g) and record this information or documents in the register mentioned in subsection (6); and

(b) record, in the register mentioned in subsection (6), documentary evidence that the child is an eligible ISP child.

Note: The documentary evidence mentioned in paragraph (b) could be a copy of information that the service has received regarding funding under the Inclusion Support Programme in relation to the child.

(4) The information or documents mentioned in subsection (2) are:

(a) the name of the eligible individual and the eligible individual’s partner (if any); and

(b) the name of the FDC carer; and

(c) the CRN (if any) of the FDC carer; and

(d) the CRN of the eligible individual (if any) if the eligible individual is not the FDC carer; and

(e) the CRN of the eligible individual’s, or of the eligible individual’s partner’s, FDC child; and

(f) the name of the approved family day care service where the FDC carer works (regardless of whether this is the service or another approved service); and

(g) the days and times of sessions of care that the FDC carer ordinarily provides at the approved family day care service where the FDC carer works (regardless of whether this is the service or another approved service); and

(h) where relevant, documentary evidence that the FDC child is an eligible disability child; and

(i) where relevant, documentary evidence that the FDC child is a remote area child; and

(j) where relevant, documentary evidence that:

(i) paragraph 8(2)(c) of the Child Care Benefit (Children in respect of whom no-one is eligible Determination) 2015 applies; or

(ii) paragraph 8(2)(d) of the Child Care Benefit (Children in respect of whom no-one is eligible Determination) 2015 applies.

Note: For the definition of documentary evidence for the purposes of this paragraph, see section 8 of the Child Care Benefit (Children in respect of whom no-one is eligible) Determination) 2015. For example, documentary evidence for the purposes of subparagraph (i) could include a copy of an enrolment form detailing the times that the eligible individual is usually required to study. Where the form does not provide such details, it must be supplemented with additional documentary evidence, such as an official course timetable. Documentary evidence for the purposes of subparagraph (ii) could include an employment contract or a payslip, showing usual hours of work—but where the contract or payslip does not show usual hours of work, a letter signed by the relevant employer is required stating usual hours of work.

(5) If the service requests that an eligible individual provide information or documents to the service under subsection (2) or paragraph (3)(a), the service will also request:

(a) that the individual inform the service of any change in circumstances which would result in the individual providing information or documents different from those provided under subsection (2) or paragraph (3)(a); and

(b) within 7 days of the change in circumstances, that the individual provide to the service the different information or documents.

(6) The service will record any information provided in response to a request mentioned in subsection (2), paragraph (3)(a) or subsection (5) in a register in the form approved by the Secretary, and also record in the register the following information in relation to each entry:

(a) the day on which the service enters the information in the register; and

(b) the day on which the service is given or sees documentary evidence provided under subsections (2) or (5).

(7) The service will, within 7 days of being notified that funding under the Inclusion Support Programme is no longer being paid in relation to a child to whom subsection (3) applies, or applied, record that fact and any other relevant information in the register mentioned in subsection (6).

(8) The service will keep:

(a) any documents provided in response to a request mentioned in subsections (2) or (5); and

(b) if applicable:

(i) a copy of the documentary evidence mentioned in paragraph (3)(b); and

(ii) any notification of the kind mentioned in subsection (7).

(9) The service will request that an individual who provides information or documents to it under this section will authorise the service, in writing, to disclose the information and documents to the Secretary.

10AB Family day care services—additional requirements relating to care provided to a child who is 14 years of age or older, or attends secondary school, but has not yet turned 18

Where the applicant is applying for approval of a family day care service the applicant must undertake to do the following things:

(1) Where care is provided to a child to whom subsection (9)(2), of the Child Care Benefit (Children in respect of whom no-one is eligible) Determination 2015 applies, the service will keep a register, in the form approved by the Secretary, of the information or documents listed in subsection (2).

(2) The information or documents are:

(a) all documentary evidence required to be provided to, or held by, the service in relation to the child under section 9 of the Child Care Benefit (Children in respect of whom no-one is eligible) Determination 2015; and

Note: For the definition of documentary evidence for the purposes of this paragraph see sections 4 and 9 of the Child Care Benefit (Children in respect of whom no-one is eligible) Determination) 2015.

(b) the name of the child; and

(c) the CRN of the child; and

(d) except where the service is eligible under section 47 of the Family Assistance Act:

(i) the name of each individual for whom the child is an FTB child or regular care child; and

(ii) the CRN (if any) of each individual for whom the child is an FTB child or regular care child; and

(e) which of the exemptions are considered to apply; and

Note: the exemptions which may apply are those that are referred to in subsections (9)(2) and (9)(3) of the Child Care Benefit (Children in respect of whom no-one is eligible) Determination 2015. These are: the child is an eligibility disability child or an eligible ISP child, the child lives in an area designated remote or very remote, or an individual is required to work during the time the session of care is provided.

(f) the day that the documentary evidence was provided or became held; and

(g) the day on which the service enters the information in the register.

(3) The service will, within 7 days of being notified that funding under the Inclusion Support Programme is no longer being paid in relation to a child to whom subsection (1) applies, or applied, record that fact and any other relevant information in the register mentioned in subsection (1).

11 Compliance with child care laws

The operation of the service, the provision of care by the service, the construction of the premises of the service and the equipment at the premises of the service must comply with all applicable legal requirements imposed by a law of the Commonwealth or a law of the State or Territory in which the service operates.

Note

The law of the State or Territory includes:

(a) a licensing law applying in the State or Territory;

(b) the Education and Care Services National Law applying as a law of the State or Territory;

- (c) a law of the State or Territory that applies the Education and Care Services National Law as the law of that State or Territory or that substantially corresponds to the provisions of the Education and Care Services National Law.

The Education and Care Services National Law regulates the operation of education and care services, which include child care services of the following kinds: centre based long day care services, family day care services and outside school hours care services.

12 Insurance

(1) The applicant must ensure that the child care service is covered by:

(a) workers compensation insurance as required by law; and

(b) public liability insurance.

(2) However, if the child care service does not exist when the application is made, insurance is not required until the child care service is established.

(3) The applicant must give the Secretary, on request, a copy of any insurance policy required under subsection (1) and a certificate of currency for the policy.

13 Priority of access

(1) Where the applicant is applying for approval of a centre based long day care service, an in-home care service, a family day care service or an outside school hours care service, the applicant must undertake that the service will provide child care places for children in accordance with the following provisions of this section.

(2) Where a child care service is funded by an employer in order to provide child care solely or primarily for the children of the employer’s employees, the service may give priority to those children.

(3) Where a child care service has entered into an agreement with an employer that, in exchange for payment made by the employer to the service, the service will provide access to a certain number of child care places for the children of the employer’s employees, the service may give priority to those children to the extent of the agreed number of places.

(4) Subject to subsections (2) and (3), when an outside school hours care service fills vacant places, it must give school children priority over children who have not yet commenced school.

(5) Subject to subsections (2) and (3), where an outside school hours care service has no vacant places and is providing child care for a child who has not yet commenced school, the service may require that child to leave the child care service in order for the service to provide a place for a school child, but only if:

(a) the person who is liable to pay child care fees in respect of the child was notified when the child first occupied the child care place that the service followed this policy; and

(b) the service gives that person at least 14 days’ notice of the requirement for the child to leave the child care service.

(6) Subject to the preceding provisions of this section, when a child care service fills vacant places it must follow the priority of access guidelines in the Schedule.

(7) Subject to the preceding provisions of this section, where the service has no vacant places and is providing child care for a child who is a third priority under Part 2 of the Schedule, the service may require that child to leave the child care service in order for the service to provide a place for a higher priority child, but only if:

(a) the person who is liable to pay child care fees in respect of the child was notified when the child first occupied the child care place that the service followed this policy; and

(b) the service gives that person at least 14 days’ notice of the requirement for the child to leave the child care service.

14C Capacity to use electronic interface

(1) The applicant must undertake that the service will be equipped to use the electronic interface, including by having registered software, for the purpose of compliance with the condition imposed on an approved child care service by subsection 196 (2) of the Act.

(2) The applicant must undertake that the service will have the operational capacity to use the electronic interface for the purpose of compliance with the condition imposed on an approved child care service by subsection 196 (2) of the Act.

Part 3 Eligibility for Continued Approval

15 Continued approval rules

The following provisions of this Part are rules that an approved child care service must satisfy in order to continue to be approved for the purposes of the family assistance law.

16 Continuing compliance with Part 2

(1) An operator of an approved child care service must be a suitable person to operate the service.

(2) In making an assessment for subsection (1), the Secretary may consider the matters mentioned in subsections 7 (2) and (3) in relation to the operator.

(3) The staff of the approved child care service must at all times be suitable people to provide child care.

(4) Carers employed, contracted or otherwise engaged by a family day care service or an in-home care service must at all times be suitable people to provide child care.

(5) When a service employs a new member of staff, or a family day care service or an in-home care service employs, contracts or otherwise engages a new carer, the service must undertake the same checks in relation to that person as it was required to undertake under Part 2 of this determination in relation to staff and carers before the service was approved.

(7) The operator of the approved child care service must continue to comply with section 12 of this determination (insurance).

16A Compliance with undertakings — general

(1) An approved child care service must comply with all undertakings given by the operator for the service under subsections 8(2), 9(2) and 13(1).

(2) An approved child care service must:

(a) if it is a centre based long day care service – comply with all undertakings given by the operator under subsection 10(1);

(b) if it is a family day care service – comply with all undertakings in subsection 10(1A) and section 10A whether or not the operator has given the undertakings;

(c) if it is an occasional care service – comply with all undertakings given by the operator under subsection 10(2); and

(d) if it is an outside school hours care service – comply with all undertakings given by the operator under subsection 10(3).

16B Approved in‑home care services — compliance with certain undertakings

Certain undertakings given before the specified date

(1) An approved in‑home care service must, subject to subsections (2) and (3), comply with an undertaking given under subsection 10 (1B) before the specified date by the operator for the service.

(2) On and after the specified date and before 1 July 2008, the approved in‑home care service may provide in‑home care to a child:

(a) to whom paragraph 10 (1C) (f) (as in force before the specified date) applies; and

(b) to whom no other paragraph of subsection 10 (1C) applies;

only if the service was, immediately before the specified date, providing in‑home care to the child.

(3) On and after 1 July 2008, the approved in‑home care service must not provide in‑home care to a child:

(a) to whom paragraph 10 (1C) (f) (as in force before the specified date) applies; and

(b) to whom no other paragraph of subsection 10 (1C) applies.

Note Paragraph 10 (1C) (f) (as in force before the specified date) was as follows:

(f) the child, or any other child with whom the child lives, is breastfed by the mother working from home; or

Certain undertakings given on or after the specified date

(4) An approved in‑home care service must comply with an undertaking given under subsection 10 (1B) on or after the specified date by the operator for the service.

Specified date

(5) In this section:

specified date means the date of commencement of the Child Care Benefit (Eligibility of Child Care Services for Approval and Continued Approval) Amendment Determination 2007 (No. 1).

17 Former childcare assistance agreement services

(1) Where the service is treated as being an approved child care service by virtue of item 11 of Schedule 6 to the A New Tax System (Family Assistance and Related Measures) Act 2000 (childcare assistance agreement services to become approved child care services), the service must comply with the following provisions of this section.

(2) The operator of the child care service must be a suitable person to operate the service.

(3) In making an assessment for subsection (2), the Secretary may consider the matters mentioned in subsections 7 (2) and (3) in relation to the operator.

(4) The staff of the child care service, and carers contracted by a family day care service, must be suitable people to provide child care.

(5) When a service employs a new member of staff, or a family day care service contracts a new carer, the service must undertake the same checks in relation to that person as it would be required to undertake if it were making an application for approval under Part 2 of this determination.

(6) The service must operate as it would have been required to operate if the operator of the service had given an undertaking in respect of the service under the relevant provision of section 10 of this determination (provision of care).

(7) The operator of the approved child care service must comply with section 12 of this determination (insurance) as if the operator were an applicant.

(8) Where the service is a centre based long day care service, a family day care service or an outside school hours care service, the service must provide child care places in accordance with subsections 13 (2) to (7) of this determination (priority of access).

18 Continuity of operator

(1) The approved child care service must continue to be operated by the person who made the application for approval of the service under section 194 of the Act.

(2) Where a service is treated as being an approved child care service by virtue of item 11 of Schedule 6 to the A New Tax System (Family Assistance and Related Measures) Act 2000 (childcare assistance agreement services to become approved child care services), the child care service must continue to be operated by the person who was operating the service on 30 June 2000.

19 Notifiable events

(1) The operator must give the Secretary written notice of at least 30 days before:

(a) entering into a contract for the sale of premises where the child care service is conducted;

(b) terminating the lease of the premises;

(c) changing the address of the service.

(2) The operator must give the Secretary written notice within 14 days of any change to the details contained in the child care service’s application for approval, other than the address of the service.

(3) If the operator becomes aware of something in relation to the persons listed in subsection (5) below, that affects or is likely to affect the suitability of the person to provide child care, the operator must give the Secretary written notice within 7 days of becoming aware, setting out:

(a) the matter; and

(b) the action that the operator has taken or intends to take to deal with the situation.

(4) Without limiting subsection (3) above, the matters that must be notified include:

(a) any criminal charge, conviction or finding of guilt against the person for an offence against a law of the Commonwealth or a State or Territory which relates to an indictable offence punishable by imprisonment of 2 years or more, or an offence for which a penalty equivalent to 40 penalty units or more could be imposed;

(b) any instances of bankruptcy involving the person;

(c) any refusal (which includes the cancellation) of, or conditions imposed in relation to, a working with children check (where required under the law of the State or Territory in which the service is situated) which relates to the person’s ability to work with children.

(5) For the purposes of subsections (3) and (4) above, the operator must provide a written notice in respect of any of the following persons:

(a) a member of the service’s staff;

(b) key personnel;

(c) if the service is a family day care service or an in-home care service, a carer employed, contracted or otherwise engaged by the service.

20 Inspection

The operator must, at any time during the approved child care service’s hours of operation:

(a) allow an officer of the agency to enter the premises of the service to ensure that the service is being operated in accordance with the family assistance law and this determination; and

(b) give the officer all reasonable assistance,

and for the purposes of this section “agency” means the Department or the Commonwealth Services Delivery Agency.

21 Information regarding child care services

(1) The Secretary may request an operator or child care service to give information:

(a) for a census or survey of child care services; or

(b) regarding the operation of child care services.

(2) Without limiting paragraph (1) (b), the information that the Secretary may request includes:

(a) personal details of each carer employed or contracted by a family day care service and the address and telephone number of the premises where child care is provided by that carer; and

(b) the number of child care places provided, or likely to be available, during a specified period or periods.

(3) The Secretary may request information to be given on an ongoing basis.

(4) The requested information must be:

(a) accurate; and

(b) given to the Secretary, or to a person specified by the Secretary:

(i) at the time, or within the period or periods, specified in the request; and

(ii) in the form, manner or way specified in the request.

(5) If the Secretary’s request requires that information given be kept up to date, any updated information must be given within 14 days after a change affecting the information occurs.

(6) The Secretary may terminate a request for information at any time.

21A Approval by Secretary

The Secretary may approve a form, manner or way of requesting or giving information under section 21.

Note For the power of the Secretary to approve the form, manner or way of doing any thing that is required or permitted to be done under the family assistance law, see section 4 of the Act. Under that section, the Secretary may approve the use of a telecommunication system or other electronic equipment.

22 Personal information

(1) The operator and its officers, employees, agents and contractors engaged in the conduct of the approved child care service must not disclose to any person, other than the Secretary or the agency, personal information about clients.

(2) Subsection (1) does not apply if the information is legally required to be disclosed.

(3) The service must ensure that personal information about clients is securely stored and that staff respect the privacy of individuals using the service by not discussing their personal details other than as needed for the administration of the service.

(4) The service must comply with the National Privacy Principles under the Privacy Act 1988 for handling personal information about clients.

(5) An approved child care service must not provide a client with any information that may identify a child as being at risk of serious abuse or neglect.

(6) In this section “client” means any person who is or has been liable to pay child care fees, and any member of the family of such a person.

24 Family day care services and in-home care services: in-home care agreement

(1) It is a condition for the continued approval of a family day care service which provides in-home care for a child or children, or an in‑home care service, that the service enters into a written agreement with the in-home carer and the person who is, or the persons who are, liable to pay child care fees in respect of the child or children.

(2) The agreement referred to in subsection (1) must set out terms and conditions for the provision of in-home care, and must include:

(a) details of the care to be provided to the child, including any particular requirements of children with disabilities, and provision for emergencies;

(b) the names of the children for whom and the period for which the care will be provided;

(c) arrangements for insurance;

(d) confirmation that the carer is not required to carry out any duties other than child care;

(e) details of any training and support that the service will provide to the carer;

(f)any safety requirements to be met by the premises where the care is to be provided;

(g) details of the fees to be charged for the care;

(h) details of alternative arrangements if the usual carer is unavailable for any reason.

(3) For the purposes of this section “in-home carer” means:

(a) the carer; or

(b) the employee of the approved child care service,

who provides in-home care.

25 24 hour care

(1) A an approved child care service must not provide 24 hour care to a child unless the period of 24 hour care has been approved.

(2) Where the period of 24 hour care was not approved at the time the care was provided, but:

(a) is subsequently approved; and

(b) the approval is given before the service’s next report is due,

for the purposes of subsection (1) the approval shall be taken to have been given before the care was provided.

(3) For the purposes of this section a period of 24 hour care is approved if either –

(a) the child care service has given a certificate in respect of the period under subsection 56(3) or (4) of the Family Assistance Act; or

(b) the Secretary has made a decision in respect of the period under subsection 56(6) or (8) of that Act.

(4) In paragraph (2)(b) “next report” means the first report of the service under section 219N of the Act following the provision of the 24 hour care.

26 Change of location

(1) Where an approved child care service has been allocated child care places under section 207 of the Act, it is a condition of continued approval that the service must not change its location unless the Secretary has approved the new location.

(2) In considering whether to approve a service’s proposed new location for the purposes of subsection (1), the Secretary shall take into account any determination made under subsection 7(1) of the Child Care Benefit (Allocation of Child Care Places) Determination 2000.

27 Standard hours family day care and standard hours in-home care

(1) For the purposes of the definitions in section 3 of the Family Assistance Act, standard hours of family day care, standard hours of in-home care, non-standard hours of family day care and non-standard hours of in-home care shall be identified in accordance with the following provisions of this section.

(2) An approved family day care service or an approved in‑home care service shall, in accordance with subsection (3), identify its standard hours in its publications, and in information given to people using the service, as being its standard hours of care.

(3) The following hours only may be identified by a service as standard hours:

(a) subject to subsection (4), hours between 7am and 6.30pm;

(b) 10 continuous hours each day, on Monday to Friday (inclusive); and

(c) hours during which the service normally provides care for the greatest number of children.

(4) A service’s standard hours of care may be at times other than those specified in paragraph (3)(a) if the Secretary approves the provision of standard hours of care at other specified times.

(5) For the avoidance of doubt, an approved family day care service’s standard hours of care, or an approved in-home care service’s standard hours of care, apply for all purposes and in respect of all children in that service’s care.

(6) Non-standard hours of family day care or in-home care shall be any hours that are not standard hours in accordance with the previous provisions of this section.

SCHEDULE

Section 13

PRIORITY OF ACCESS GUIDELINES

PART 1 – DEFINITIONS

In this Schedule:

family, for a child, means the child, the individual in whose care the child is, that individual’s partner (if any), and any other individual with whom the child lives;

parents means the individual in whose care a child is, and that individual’s partner;

single parent means an individual in whose care a child is, and who has no partner.

PART 2 – PRIORITIES

1. First priority A child at risk of serious abuse or neglect.

2. Second priority A child of a single parent who satisfies, or of parents who both satisfy, the work/training/study test under section 14 of the Family Assistance Act.

3. Third priority Any other child.

PART 3 – PRIORITIES WITHIN EACH

CATEGORY OF PRIORITY

Within each category mentioned in Part 2 the following children are to be given priority:

children in Aboriginal and Torres Strait Islander families;

children in families which include a disabled person;

children in families which include an individual whose taxable income % under clause 7 of Schedule 2 to the Family Assistance Act is 100%;

children in families with a non-English speaking background;

children in socially isolated families;

children of single parents

Note: Endnotes

Note: Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Note: Endnote 2—Abbreviation key

Note: Endnote 3—Legislation history

Note: Endnote 4—Amendment history