20 August 2017

Cancellation of Service Approval (Breach of Condition): DBU v Secretary, Department of Education

This is another NSW case where a family day care provider has sought review by NSW Administrative and Civil Tribunal (NCAT) of the decision of the NSW Regulatory Authority under the National Law (Department of Education) to cancel its service approval for breach of condition.

The full decision can be found here. In June 2016 the approved provider (DBU) was granted service approval to operate a service in Sydney. DBU contacted the Department on several occasions in relation to the delay in getting Child Care Benefit (CCB) approval from the Commonwealth Government. About nine months after the approval had been granted, DBU was issued with a show cause notice of intention to cancel the service approval on the basis that ongoing operation of the service had not commenced within six months after the service approval as required by the condition in section 51. Following the applicant’s response to the show cause notice, the service approval was cancelled by the Department in April 2017, to come into effect from 12 May 2017. DBU then sought review by NCAT under section 192 of the National Law. There was some argument by the applicant (DBU) that in fact it was operating as contemplated by the National Law but the Tribunal found that DBU had breached the condition of the service approval under s.51(3)):
It is clear from the legislation that, once a service approval has been granted, the provider has six months within which to commence operations – unless, of course, that time is extended by the respondent. In this case, there was no such extension sought or granted. I agree with the submissions made by the respondent that for a family day care service to have commenced ongoing operations, it must have commenced in the way contemplated by the National Law. That is, it must actually be operating as a family day care service providing education and care to children through the use of two or more educators. This was the conclusion reached by the Tribunal in CVM v NSW Department of Education [2017] NSWCATAD 108 with which I respectfully agree. (para. 37)
The Tribunal considered whether it was appropriate the service approval was cancelled. The Tribunal was of the view that the condition was an important one:
Indeed, the objectives and guiding principles of the National Law as set out in s 3 make clear the law is directed towards facilitating the implementation of a quality framework for the delivery of education and care services for children on a national basis which has at its forefront the rights and best interests of those children. To further those aims it is important that compliance with the law be implemented thoroughly and consistently throughout all Australian jurisdictions. 
The applicant is in breach of the condition set out in s 51(3) of the National law. I agree with the submissions of the respondent that the condition is one of importance. Unlike some other conditions which may be imposed on an approval, this is a mandatory condition with legislative force. Furthermore, the importance of compliance with the condition is evident in the offence provision in s 173 and the penalties which may be imposed....
While I understand the practical issues raised by the applicant in commencing to operate the service without CCB approval, as stated above, there is no legal requirement that CCB approval be obtained before educators can be registered and children enrolled in the service (paras. 44-5, 47)
The Tribunal thought that in this case the decision of the Department should be upheld:
Since this application was lodged, the Commonwealth has made a decision to refuse the application for CCB approval. That decision indicates that the delay in the CCB approval process was substantially attributable to the applicant who submitted incomplete information and was required to provide amended documentation at several points in the process. 
The applicant is of the view that the decision will be overturned on review. The respondent, on the contrary, submits that there is no reason to expect that the Commonwealth will make a different decision. The Tribunal makes no comment on the applicant’s prospects of success in the review application. I have, however, considered, in light of that application, whether the decision under review should be set aside and the applicant, in effect, be given further time to commence operation. I am not satisfied that in the circumstances of this application that would be an appropriate course. The service approval was now granted more than 12 months ago on the basis of the information current at that time. That information may have changed. There are no children and parents who are affected by the cancellation of the approval as the service has not commenced. Members of the public are therefore not affected by the cancellation. 
I accept that the cancellation has been a severe blow to the applicant’s aspirations. She has made it apparent that she believes she can only successfully operate the service if she obtains CCB approval. If she is successful in her application for review of the CCB decision, while there may be some cost to her in reapplying for service approval, that course would appear to be open to her. 
Having considered all the evidence and competing submissions of the parties, under s 193(3) of the National Law, I confirm the decision under review (paras. 48-52).
In addition, this case highlights a deficiency in the National Law (which has been mentioned in previous NCAT cases as well (see paras. 8-26) . Under section 192 of the National Law the appropriate tribunal is to conduct a review of the decision made by the Regulatory Authority. However, what that review encompasses is not defined in the National Law. Therefore, NCAT itself has had to determine what a review under s.192 encompasses.
 

15 August 2017

New Book: Regulation in Australia

Arie Freiberg has just published his new book called Regulation in Australia. The following is from the Federation Press website:
Regulation in Australia is the successor to Freiberg’s well-received title The Tools of Regulation published in 2010. This substantially enlarged work adopts an expansive approach to government regulation, viewing it as an arm of public policy that provides an understanding of what governments do and how they do it, rather than as a technical exercise in rule-making and compliance.
Over 17 chapters, Regulation in Australia provides a comprehensive analysis of the nature of regulation, its historical origins in Australia and its development over the past two centuries, why governments regulate and who regulates whom at the federal, state and local government levels.
Management of the regulatory process, the principles of good regulation and red tape in regulation are examined. The role of soft law, prescriptive, performance-based and principle-based regulation, as well as the use of rewards and incentives in regulation is also explored. How governments use economic, transactional informational and structural regulatory tools and authority tools is extensively discussed. The book examines why people or organisations do or do not comply, what enforcement measures can be used in the event of non-compliance and broad regulatory strategies used by governments.
Further information is available from the Federation Press website.

Government Vaccination Campaign & More on the Tasmanuan School Age Changes

According to reports on Yahoo 7 News and News.com.au the Federal Government has launched a new campaign to encourage children to vaccinate their children.

ABC Online carried a report on the outcome of a poll on the proposed Tasmanian school age changes.

13 August 2017

Childcare Provider Calls for Governments to Reduce Rents

According to a report in The Daily Telegraph, Goodstart Early Learning has called on governments to reduce the cost of rent for premises in order to reduce childcare fees.

7 August 2017

Outdoor Space at Childcare Centres

The Herald Sun newspaper recently published a story on waivers granted to some childcare centres in Melbourne from the outdoor space requirements of the National Regulations.

2 August 2017

Proposal to Lower School Age in Tasmania - More News

The media are increasingly covering this issue and its impact on childcare services. The Circular Head Chronicle carried a story on the campaign against the changes. ABC Online had a story on the possible impact on childcare fees.

30 July 2017

Refusal of Service Waiver: Brisbane City Child Care Pty Ltd v Dalton

This is a very interesting case heard by the Queensland Supreme Court in which the applicant (Brisbane City Child Care Pty Ltd) sought a review of the decision of the respondent (Queensland Department of Education and Training - the Regulatory Authority in Queensland under the National Law) to refuse to grant a service waiver. It is significant because it is an application for review of a decision by the Regulatory Authority outside the review provisions outlined in section 192 of the National Law. In fact the National Law does not provide for any review of a decision by the Regulatory Authority to refuse to grant a waiver. Instead, the application for review was made under the power of the Queensland Supreme Court to review administrative decisions on administrative law principles. It is likely that such reviews are available in other States and Territories depending on the applicable legislation.

The full facts are set out in the judgment. However, in brief, the applicant is an approved provider and operates a service (Brisbane City Child Care). It applied for a service waiver, under section 87, from the outdoor space requirements of regulation 108(2) in respect to "infants" only. It also sought to amend its service approval to allow it to care for more than 147 children the service was allowed to care for. The application was based on the reasoning that if at any one time only 60% of the total number of children were outside, then the outdoor space requirement for children could be reduced to 60% of the 7m2 which would otherwise apply (i.e. 4.2 m2). 

The Department refused to grant the service waiver and the approved provider sought administrative review by the Supreme Court under the provisions of the Judicial Review Act 1991 to get the decision set aside. The grounds on which it relied were:
  • breach of the rules of natural justice
  • failure to take into account relevant considerations
  • taking into account irrelevant considerations
  • making errors of law in the form of misconstruction of particular legislative provisions.
The Court found that one of the grounds had been made out by the approved provider:
I have found that the decision made by the respondent should be set aside with effect from the day it was made because of the respondent’s failure to comply with the requirements of procedural fairness (para. 73)

Specifically, the Court found that the natural justice hearing rule had been breached. The hearing rule requires that the "...party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and be informed of the nature and content of adverse material." (Court quoting Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd, at para. 38). Paragraphs 38-52 outline the specific breaches of the rule by the Department.

South Australia's Proposed Laws Banning Unvaccinated Children from Childcare

The South Australian Government is proposing introducing such laws along similar lines to that of Victoria and NSW and is seeking feedback until 31 August 2017. The Advertiser carried a story on the proposal.

23 July 2017

NSW Liability for Child Abuse Legislation

The NSW Government has published a consultation paper proposing the introduction of legislation relating to the civil liability of organisations responsible for caring for children, in response to recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse. This appears similar to the legislation recently introduced in Victoria (see previous blog). The Daily Telegraph also published a story on this proposal.