52Matters the Secretary must take into account in exercising the power to impose a sanction on an approved provider

#### 52 Matters the Secretary must take into account in exercising the power to impose a sanction on an approved provider (1) This section prescribes matters for subsection 195H(2) of the Family Assistance Administration Act to be taken into account by the Secretary in relation to the exercise of a power to impose a sanction under subsection 195H(1) of that Act for having not complied, or not complying, with a condition (or conditions) of the provider’s continued approval. (2) This section does not limit the matters the Secretary may take into account for that purpose. Whether to impose a sanction (3) In deciding whether to impose a sanction on the provider, the Secretary must take into account whether the provider’s non‑compliance: (a) appears to be an isolated incident or forms part of a history of apparent contraventions engaged in by the provider; or (b) has resulted in overpayments of CCS and ACCS, or is likely to result in such overpayments; or (c) involves a failure to reasonably cooperate with a person exercising powers under the family assistance law; or (d) involves a failure to take reasonable care to ensure that information given to the Secretary in connection with the family assistance law, including in a report under subsection 204B(1) of the Family Assistance Administration Act, is not inaccurate, false or misleading; or (e) is associated with a debt to the Commonwealth (whether or not discharged) under Division 2 of Part 4 of the Family Assistance Administration Act; or (g) is associated with any other relevant aggravating or mitigating factors in relation to the non‑compliance. Which sanction to impose (4) The Secretary must take into account the following matters in considering which sanction to impose: (a) whether it would be more appropriate to exercise the power to suspend the provider’s approval under paragraph 195H(1)(a) of the Family Assistance Administration Act rather than to impose a different sanction, having regard to the following matters: (i) whether the provider’s non‑compliance is of a systemic and ongoing nature (taking into account that systemic and ongoing contraventions may be more appropriately dealt with through cancellation rather than suspension); (ii) whether the provider’s non‑compliance has resulted in significant debts of CCS and ACCS, or is likely to result in overpayments of CCS or ACCS if the approval is not suspended (taking into account that the higher the debts or overpayments, the more appropriate it is to cancel rather than suspend); (iii) any other relevant matters; (b) whether it would be more appropriate to cancel the provider’s approval under paragraph 195H(1)(b) of that Act rather than to impose a different sanction, having regard to the following matters: (i) whether the non‑compliance has resulted in significant and multiple overpayments of CCS and ACCS, or is likely to result in such overpayments if the approval is not cancelled; (ii) whether the non‑compliance indicates a failure to take reasonable care to comply with the condition, or a lack of ability to understand the obligation to comply; (iii) whether the non‑compliance demonstrates that the provider is no longer a fit and proper person to provide a child care service for the purposes of section 194E of the Family Assistance Administration Act; (iv) whether the non‑compliance constitutes an unacceptable risk to the safety, health or wellbeing of children being cared for in one or more child care services for which the provider is approved; (v) any other relevant matters.