Family Assistance Legislation Amendment (Child Care Financial Viability) Act 2011 (120 of 2011)

Schedule 1  

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

15   After section 219G

Insert:

219GA Secretary may require financial information relating to large long day care centre operators

(1) For the purposes of determining whether a large long day care centre operator is financially viable, and likely to remain so, the Secretary may, by notice in writing, require a person mentioned in subsection (2) to provide financial information in relation to a financial year if the Secretary has reason to believe that the person is capable of giving the information.

(2) For the purposes of subsection (1), the Secretary may give a notice to the following persons:

(a) the operator;

(b) a person who, at any time during the financial year, owns 15% or more of:

(i) the operator; or

(ii) if the operator 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 operator; or

(ii) if the operator 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 operator;

(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 operator; or

(iv) if the operator consists of more than one person - any of those persons;

(f) a person who directs or instructs:

(i) the operator; or

(ii) if the operator 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 operator; or

(ii) if the operator 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 operator; or

(ii) if the operator consists of more than one person - any of those persons;

acts, or is accustomed to act, in concert;

(i) a person, if:

(i) the operator; or

(ii) if the operator 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 operator; or

(ii) if the operator 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).

(3) The Secretary’s notice must specify:

(a) the financial information required; and

(b) the period within which, and the manner in which, the person must comply with the notice.

(4) The Secretary may only require financial information that relates to any of the 5 financial years immediately preceding the date of the notice.

(5) The period specified under paragraph (3)(b) must be reasonable in all the circumstances.

(6) A person who is given a notice under this section must comply with the notice.

Note 1: This is a civil penalty provision. Part 8C provides for pecuniary penalties for breaches of civil penalty provisions.

Note 2: Sections 137.1 and 137.2 of the Criminal Code create offences for providing false or misleading information or documents.

(7) For the purposes of:

(a) paragraph (1)(d) of Information Privacy Principle 11 in section 14 of the Privacy Act 1988; and

(b) paragraph 2.1(g) of National Privacy Principle 2 in Schedule 3 to the Privacy Act 1988; and

(c) 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 law.

219GB Audit of operator of approved child care service

(1) If, on the basis of information received under section 219GA, the Secretary has concerns about the financial viability of an operator of an approved child care service, the Secretary may engage an appropriately qualified and experienced expert to carry out an independent audit of the operator.

(2) The expert may be assisted by members of an audit team.