Explanatory Memorandum
(Circulated by authority of the Minister for Education, the Hon Jason Clare MP)STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Early Childhood Education and Care (Three Day Guarantee) Bill
The Early Childhood Education and Care (Three Day Guarantee) Bill (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The purpose of the Early Childhood Education and Care (Three Day Guarantee) Bill 2025 (the Bill) is to give effect to the Australian Government's 3 day guarantee, replacing the Child Care Subsidy (CCS) activity test to ensure Australian families are entitled to at least three days of CCS per week for early childhood education and care (ECEC), as well as extending a greater entitlement to subsidised care for families caring for an Aboriginal or Torres Strait Islander child.
This reform is part of the next steps in building a universal early education and care system, expanding access to quality early education across the country. The measure has been informed by the Productivity Commission (PC) and the Australian Consumer and Competition Commission's (ACCC) inquiries into early education, which the Australian Government commissioned to identify a pathway to universal ECEC in Australia. It will improve ECEC affordability, easing cost-of-living pressures for families and supporting ECEC access, particularly for low-income families whose children are most likely to benefit from ECEC attendance. It will make accessing subsidies simpler and empower families, particularly women, to choose to work, study, volunteer, or engage in other non-employment related activities.
The Bill makes amendments to the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act), and the A New Tax System (Family Assistance) (Administration) 1999, (the Family Assistance Administration Act) which are the key Acts that determine families' fortnightly entitlements to CCS and the ACCS (the Additional Child Care Subsidy).
Schedule 1 – Amendments
Amendments to the Family Assistance Act in Schedule 1 to the Bill will impact the number of hours of CCS that families are entitled to receive per fortnight.
The CCS activity test determines the maximum number of hours per fortnight of subsidised ECEC a child is entitled to, based on time spent by parents and carers undertaking 'recognised activities', including paid work, study and volunteering. Families who do not undertake sufficient recognised activity may currently receive 0 or 36 hours of CCS per fortnight (unless an exception applies). The amendments in Schedule 1 will replace the current CCS activity test and provide a guaranteed minimum of 72 hours per fortnight of subsidised ECEC for all families, regardless of the time spent on recognised participation types, and a guaranteed 100 hour entitlement per fortnight for parents caring for an Aboriginal or Torres Strait Islander child.
Amendments to the Family Assistance Act and Family Assistance Administration Act in Schedule 1 to the Bill will also update the language of the activity test. These are solely terminological changes intended to reflect the 3 day guarantee policy settings.
Schedule 2 – Application and saving provisions and transitional rules
Application, saving and transitional provisions in Schedule 2 to the Bill will ensure that the amendments apply to sessions of care provided to a child in a CCS fortnight that starts on or after the commencement of the Bill. This will assist families and providers by ensuring the amendments do not take effect mid-way through a CCS fortnight. These provisions will also ensure that rules and determinations made under relevant provisions remain in effect, and will allow the Minister to prescribe rules relating to the application of amendments, and transition to the new policy settings.
Human rights implications
The Bill engages the following rights:
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- the rights of parents and children – articles 3, 18 and 27 of the Convention on the Rights of the Child (CRC);
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- the right to education – article 13(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR);
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- the right to equality and non-discrimination, particularly on the basis of race – article 2(2) of the ICESCR and article 2 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).
Rights of parents and children
Article 3 of the CRC states that in all actions concerning children, the best interests of the child shall be a primary consideration. Further, article 18 of the CRC requires States Parties to take all appropriate measures to ensure that children of working parents have the right to benefit from child care services and facilities. Finally, article 27 of the CRC recognises the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.
The Bill promotes the rights of parents and children, and the best interest of children, by providing greater subsidisation of the costs of ECEC. The Bill provides greater access to child care services by easing cost-of-living pressures faced by families, particularly low-income families, who are disproportionately likely to have fewer subsidised hours under current activity test requirements. In particular, the Bill increases minimum entitlements to 72 hours per fortnight for all families, and increases minimum entitlements to 100 hours per fortnight for families caring for an Aboriginal or Torres Strait Islander child.
The Bill also promotes the rights of children, and the best interests of children, by increasing access to high quality ECEC. Evidence shows ECEC – when delivered in a quality setting – is a key protective factor, and positively relates to children's developmental outcomes (Australian Early Development Census (AEDC), 2020). In particular, the amendments will increase the hours of subsidised care available for Aboriginal and Torres Strait Islander children. The amendments are also intended to increase access to high quality ECEC by increasing the affordability of this care.
The Bill is compatible with the rights in articles 3, 18 and 27 of the CRC because it promotes the rights of parents and children.
Right to education
Article 13(1) of the ICESCR recognises the right of everyone to education.
The Bill promotes this right by increasing access to ECEC by increasing the number of subsidised hours of ECEC all families are entitled to. Quality ECEC lays the foundation for lifelong development and learning and leads to better health, education and employment outcomes later in life. The Bill increases the number of hours of subsidised ECEC for families and expands the opportunity for children to access the benefits of ECEC. The Bill will also be beneficial for low income families, whose children are most likely to benefit from ECEC attendance.
The Bill is compatible with the right to education in article 13(1) of the ICESCR because it promotes the right to education.
Right to equality and non-discrimination
Article 2(2) of the ICESCR provides that States Parties undertake to guarantee that the rights set out in the ICESCR will be exercised without discrimination of any kind, including on grounds of race. Article 2 of the CERD requires States Parties to pursue a policy of eliminating racial discrimination in all its forms.
The Bill introduces a new baseline entitlement of 100 subsidised hours of care per fortnight for Aboriginal and Torres Strait Islander children. This increases the existing Aboriginal or Torres Strait Islander child entitlement of 36 subsidised hours of care to 100 subsidised hours of care per fortnight.
Article 1(4) of the CERD recognises that 'special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination.' The increased 'Aboriginal or Torres Strait Islander child result' is intended to be a special measure to benefit a racial or ethnic group, that is Aboriginal and Torres Strait Islander children, as contemplated by article 1(4) of the CERD.
Notably, the Convention on the Rights of the Child Committee has explicitly discussed the need for Indigenous children to be the subject of special measures designed to increase their access to education and social services. [1]
Evidence shows that access to quality early childhood education reduces developmental vulnerability for children, and improves early childhood development, particularly for children experiencing disadvantage. The most recent AEDC report found that only 34.3 per cent of First Nations children (and 42.7 per cent of children experiencing the highest level of socioeconomic disadvantage) were developmentally on track upon starting school, compared to 54.8 per cent of all children (2021). Submissions to the PC Inquiry reported that the current activity test represents a barrier to ECEC access for First Nations families, by restricting access to subsidised hours and imposing greater administrative burdens. Despite the current activity test policy for First Nations children that provides 36 hours of subsidised ECEC a fortnight, the PC Inquiry heard from SNAICC – National Voice for our Children, that a high proportion of First Nations families experiencing socio-economic disadvantage are still unable to access ECEC services due to the complexity of the test.
By removing the activity test as a barrier to ECEC access for Aboriginal and Torres Strait Islander families, the increased 'Aboriginal or Torres Strait Islander child result' is an additional protective step to ensure that Aboriginal and Torres Strait Islander children are given equal enjoyment or exercise of human rights and fundamental freedoms. Improved affordability and access to subsidised quality ECEC is intended to address developmental gaps identified in the AEDC. This supports Government progress against Target 4 under the National Agreement on Closing the Gap (increase the proportion of First Nations children assessed as developmentally on track in all five domains of the AEDC to 55 per cent, by 2031).
Therefore, this Bill can be considered a special measure under article 1(4) of the CERD that does not constitute racial discrimination and promotes the right to equality and non-discrimination, in particular on the basis of race. It is aimed at the purpose of achieving substantive equality for Aboriginal and Torres Strait Islander children, and is necessary to achieving that goal.
The Bill is compatible with the right in article 2(2) of the ICESCR and article 2 of the CERD because it promotes the right to equality and non-discrimination on the basis of race.
Conclusion
The Bill is compatible with human rights because it promotes the protection of human rights.