18 September 2017

Refusal to Grant Provider Approval (s.12): CZR v NSW Department of Education, Early Childhood Education and Care Directorate

This is a very significant case as it is the first review by an administrative body of a decision by a Regulatory Authority to not grant a provider approval to an applicant under section 12 of the National Law. It is also significant as the tribunal examined the breadth of the definition of "fit and proper person" under section 12 (the only other time this was considered was in CYD v Secretary of the NSW Department of Education, see my blog post).

The case, involved a review by the NSW Civil and Administrative Tribunal (NCAT) of a decision by the NSW Department of Education to not grant provider approval to the applicant, CZR. In brief, CZR participated in a compulsory assessment process conducted by the Department and assessed CZR as not demonstrating an adequate knowledge and understanding of the requirements of the National Law. It therefore concluded CZR was not a fit and proper person under section 12 and refused the application. The assessment process involved giving applicants one hour to complete two scenario questions under supervised examination conditions. CZR raised several issues about the the fairness of the process and its implementation. NCAT looked at the purpose of the legislation and the responsibilities of approved providers and concluded that: 
The Tribunal agrees with the respondent’s submission and finds that a ‘fit and proper person’ for the purposes of s.12 of the National Law must demonstrate detailed and accurate knowledge and understanding of the National law and the Regulation. While a knowledge of National Law is not expressly contemplated in s.13(1) and (2) of the National Law in determining ‘a fit and proper person”, s.13(3) of the National Law makes it clear that factors not expressly listed may be taken into account in determining whether a person is a fit and proper person. This construction is based on a detailed knowledge and ability being directly correlated to the well-being and safety of children and the other objects and guiding principles of the National Law. That is, the National Law and Regulations is the regulatory framework for family day care services. It sets out requirements for children’s health and safety issues, the physical environment, supervision of children, staff qualifications and training, staffing arrangements, record keeping, emergency and evacuation procedures, reporting, offences and compliance. This is not an exhaustive list. Any failure by an operator to acquire and possess this requisite knowledge and ability places children at risk. 
To the extent that the CZR did not demonstrate a sufficient knowledge of the National Law and Regulations, she is not a fit and proper person under section 12 of the National Law. This of course, does not prevent her from making a further application to the respondent for a provider approval in the future (paras. 37-39).
In relation to determining the scope of what a "fit and proper person" encompasses under the National Law, NCAT specifically said:
..."The expression “fit and proper person” “takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities”. Australian Broadcasting Tribunal v Bond (1980) HCA 33 170 CLR 380. 
In Hughes v Vale Pty Ltd v NSW (No.2) (1955) 93 CLR 127 the High Court considered that “fitness” had three components; honesty, ability and most relevantly, ‘knowledge’ in the sense of knowing what ought to be done (paras.35-36)

17 September 2017

Issues with Vaccination Requirements in Childcare

The Herald Sun carried a report on issues with vaccination requirements, in particular, the granting of exemptions by doctors.

15 September 2017

NSW Parlament Passes New Vaccination Legislation

The NSW Parliament recently passed legislation to amend the Public Health Act to introduce stronger vaccination requirements for families enrolling children into childcare centres. Reports were carried in The Sydney Morning Herald , The Australian and SBS Online.

10 September 2017

NSW Childcare Centre Waivers for Outdoor Space

The Daily Telegraph recently ran a story about the number of NSW education and care services granted service waivers from the outdoor space requirements of the National Regulations.

3 September 2017

Child Care Benefit Fraud and Regulation

There have been a number of articles in the media recently on child care benefit fraud and the regulatory system under the National Law. The Herald Sun carried a story on Commonwealth Government actions against Victorian family day care providers for fraudulently claiming benefits. ABC Online carried a similar story focussing on NSW, as did The Daily Telegraph confusing State and Federal regulatory functions and powers.

And the Commonwealth Government has been critical of State Regulators, particularly of South Australia, for their lack of quality assessments, according to ABC Online.The Advertiser carried a similar story.

Cancellation of Service Approval (Breach of Condition): 3 Angels Family Day Care Pty Ltd 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. In this case the name of the service has been published. Normal practice of NCAT in the past has been to not publish approved provider details.

The full decision can be found here. In January 2016 the approved provider (3 Angels Family Day Care Pty Ltd) was granted service approval to operate a service in NSW. In February 2017, the Department contacted the approved provider and was told that the service was not currently operating as it had not been given Child Care Benefit (CCB) approval by the Commonwealth Government. In March 2017 the Department gave notice that the service approval would be cancelled. The approved provider responded that they could not operate without CCB approval. In April 2017, the service approval was cancelled under section 79(1)(a)(i) of the National Law. The ground for the cancellation was that a condition of the service approval under s.51 had not been complied with, being the requirement to commence ongoing operation within six months (s.77(d)). At the hearing the approved provider argued that they had commenced operating the service. The Tribunal found that the care that was being provided for children was a "personal arrangement" under s.5(1) of the National Law:
The evidence indicates that the applicant “intends” to provide education and care on a regular basis to children under 13 years of age, by offering services to other children. I am satisfied, on that basis, that it is an “education and care service” as defined. However, given that it is currently providing education and care in a way that does not meet the definition, I do not consider that it has commenced operation. 
I note also that the applicant is required by the condition in s 51(3) of the National Law to commence “ongoing” operation within six months. The Tribunal may, in some circumstances, find that the correct and preferable decision is to allow an applicant which has commenced ongoing operation at the time of the hearing to continue to do so, even if the applicant failed to comply with the condition in s 51(3). In this case, after only four days of the applicant providing services, it is too soon to be persuaded that the applicant has commenced ongoing operation (paras. 23-4)
The Tribunal affirmed the decision of the Department to cancel the service approval: 
The failure to commence operation for about nineteen months is a breach of the condition of the service approval. The respondent was entitled to cancel the service approval on this ground (National Law, s 77(d)). Further, for reasons given above, it has still not commenced ongoing operation. 
If I am wrong about this, I would nevertheless decline to exercise my discretion to allow the service to continue operating. 
The two matters referred to above, the lack of evidence that Ms Kattar’s [director of approved provider] mother has an applicable Working With Children Check clearance, and the lack of evidence that the neighbour providing care has commenced studying a relevant course, are both concerning. They indicate a lack of compliance with the National Law and the regulations which compounds the failure to comply with the condition requiring the applicant to commence ongoing operation of the service within six months. They also indicate a lack of understanding of the high standards which it is necessary for the applicant to meet in order to comply (paras. 29-31)

2 September 2017

Inadequate Supervision (Section 165, National Law): Chief Executive Officer of the Department of Local Government and Communities and Camp Australia Pty Ltd

As mentioned in previous blogs, in Western Australia rather than prosecute in a court (as is the case with other States and Territories) certain breaches of the National Law may be heard instead by the WA State Administrative Tribunal (WASAT) as a disciplinary action under s.188B of the Schedule to the Education and Care Services National Law (WA) Act 2012). Normally, consent orders are agreed between the parties. However, in the following two cases, both involving Camp Australia Pty Ltd as the approved provider, the approved provider contested the proposed sanction sought to be imposed by the State Regulatory Authority (Department of Local Government and Communities). 

In Chief Executive Officer of the Department of Local Government and Communities and Camp Australia Pty Ltd [2017] WASAT 109, Camp Australia agreed it had breached section 165 but disputed the penalty sought to be imposed by the Department. The agreed facts of the case are set out in para.10 of the decision and related to the Coogee Primary School OSHC Service. Before the Tribunal, the Department sought the imposition of a fine as well as a supervision risk assessment be undertaken of all Camp Australia services in WA, in light of previous contraventions of s.165 by Camp Australia. Camp Australia agreed that a fine was appropriate but that the Tribunal had no power to order a supervision risk assessment. The Tribunal regarded the case before it as being in the lower order of seriousness in that the 5 year old left the service supervised, but did not leave the school grounds and the child was located after having been outside the supervision of the service between five and 10 minutes. However, a consideration in determining the penalty was also the prior contraventions by Camp Australia (paras 52-53):
There are some factual similarities between the current matter and the other three incidents (particularly that in each case the education and care service was operated by the same corporate entity and in each case a child was unsupervised to the extent that it was able to leave the premises). However, the applicant has not tendered evidence of any other commonality. There is no evidence tendered of commonality of staffing, contravention of procedures, failure of equipment, or otherwise. The applicant has not tendered evidence of any specific systemic issues, or any pattern of neglect or systemic disregard for rules, systemic problems with supervision or management, or any other factors common. In the absence of facts of this nature, the Tribunal does not accept, as maintained by the applicant, that the facts are sufficiently similar or linked in a way that suggests the respondent's contraventions are not isolated instances.
For these reasons, the Tribunal is satisfied (and so finds) that the respondent's other contraventions of s 165(1) of the National Law were isolated incidents. There is no basis on the evidence before the Tribunal to find that such contraventions negatively impact upon the respondent's worthiness or reliability to provide education and care services in the future. Accordingly, the Tribunal considers that the respondent's disciplinary history to be a matter of very limited weight in assessing an appropriate penalty. The Tribunal does not accept the applicant's submission that, in the present case, the contraventions significantly increase the objective seriousness of the respondent's contravening behaviour. The impact of the respondent's prior contraventions on the seriousness of the conduct in the present matter is nominal.
The Tribunal decided to impose a $7,000 fine and in relation to the supervision risk assessment it said the following (paras. 58-9, 66):
In a matter involving a finding that an education and care service contravened s 165(1) of the National Law by failing to ensure that all children were adequately supervised, it would be open to the Tribunal, upon being satisfied of the necessary facts, to order a person linked to a WA service to take certain actions, or refrain from taking certain actions, to comply with the law. Such actions might include, in appropriate circumstances, an order that the approved provider conduct an audit of the education and care service to ensure that its practices and procedures and the physical parameters of the service as they relate to supervision reflect the guiding principles of the national education and care services quality framework.
Such facts have not been established in the present matter, however. Although the respondent admits that it failed to ensure that a child was adequately supervised, the SAF [Statement of Agreed Facts] is silent as to how or why this occurred. The SAF is silent on why, as a matter of fact, a written supervision risk assessment is reasonably necessary to ensure the future safety, health and wellbeing of children attending the Coogee Service, particularly in light of the facts agreed at paragraph 2.10 of the SAF....
The Tribunal's view is that it is not fair or reasonable to impose orders requiring the respondent to take action to ensure compliance with s 165(1) of the National Law at any of its 87 services without evidence of some relationship between the action required and the contravention alleged or established.
In Chief Executive Officer of the Department of Local Government and Communities and Camp Australia Pty Ltd [2017] WASAT 111, Camp Australia agreed it had breached section 165 but disputed the penalty sought to be imposed by the Department. The agreed facts of the case are set out in para. 10 of the decision and related to the Jandakot Primary School OSHC Service. Similar arguments were made as in the Coogee service case (above). In fact both decisions were handed down by the same Tribunal member on the same day. In this case the Tribunal imposed a fine of $8,500 and costs of $6,027 and also regarded it as an isolated incident. For the same reasons given in the Coogee decision, the Tribunal did not think it appropriate to impose a supervision risk assessment of all Camp Australia Services.


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.