21 October 2017

BKE Pty Ltd v Department of Education and Training - Suspension of Service Approval

This case concerned an application to the Queensland Civil and Administrative Tribunal (QCAT) from the approved provider (BKE Pty Ltd) for a review of the decision of the Queensland Regulator under the National Law (Department of Education and Training) to suspend service approval for Busy Kids Cranbrook Kindergarten and Child Care Centre. The suspension was originally stayed by the Tribunal.

The Department issued a show cause notice for cancellation under section 78, following a number of breaches of the National Law and Regulations. Some of these breaches resulted in the issue of a show cause notice for suspension and a Compliance Direction. Full details of the compliance history of the service is outlined in the decision. After considering the approved provider's response to the show cause notice, the Department decided to suspend service approval for three months instead (see section 79). 

At the hearing, the approved provider admitted to the breaches but argued that "...where historical breaches notified by the Department had been remedied, or taken into account in the course of the Department previously reaching a decision not to cancel or suspend BKE’s service approval, they could not later be taken into account when again considering cancellation or suspension. Alternatively, BKE submitted that the breaches, if they could be taken into account, did not individually or collectively warrant suspension." (para.15). QCAT rejected the first argument saying that the decision maker in exercising its discretion to suspend or cancel can take into account past breaches:
The propensity of a service provider to not fulfil its obligations to maintain a safe environment for children would, in my view, be a relevant factor for the exercise of the discretion. It is also relevant in determining whether the threshold conditions for the exercise of the power are satisfied. That propensity may be revealed by a continuing failure to proactively comply, notwithstanding that a provider may have remedied breaches in a reactive way as they were brought to attention. (para.20).
The Tribunal then examined the breaches that had occurred to see if suspension was appropriate and concluded:
A decision to suspend a service approval involves: (1) determining whether the power is enlivened; and, if so, (2) deciding whether as a matter of discretion it should be exercised.
It is clear that if, as I have decided, it is appropriate to consider earlier breaches, the suspension power is enlivened by the acknowledged breaches of the National Law: s 70(e).
Taking into account matters outlined in the discussion below in relation to the exercise of the discretion, I would in any case also conclude that it would not be in the interests of children being educated and cared for by the service for the service to continue (s 70(a)). I would also conclude that the s 51(1) implied condition of the approval – the service being operated in a way that “ensures the safety, health and wellbeing of children being educated and cared for by the service” - has not been complied with (s 70(b)) (paras. 79-81).
One of the major reasons for QCAT in supporting the Department's decision to suspend was the number of previous and current breaches as well as the attitude of the approved provider:
Having regard to the further issues identified at the monitoring visit after the service recommenced operations and the recurring nature of the non-compliance, and notwithstanding Ms King’s long history in the industry, I cannot be satisfied that BKE is committed to ensuring compliance with the requirements of the National Law and Regulations. Bearing in mind the two show cause notices and various compliance directions and advice already issued to BKE, one might reasonably ask what else, short of suspension, the Department as the regulatory authority, and the Tribunal in its place on review, could reasonably do to ensure BKE’s compliance with its legal obligations? (para.97).

18 October 2017

Victorian Multiethnic Slavic Welfare Association Inc (in liq) & Anor v Trajkov & Anor

ABC Online recently carried a report of a court case in which the Victoria Multiethnic Slavic Welfare Association Inc (in liquidation), operators of a childcare centre in Lalor, sued its President, Boris Trajkov, for using Association funds for personal purposes. You can see the full County Court judgement here.

11 October 2017

Profitability of Childcare Services

ABC Online recently published an article by a childcare consultant in relation to the profitability of childcare services and childcare fees.

7 October 2017

2017 Annual Early Learning & Childcare Services Survey

The Australian Childcare Alliance NSW (the industry body for owners and operators in NSW) recently conducted a survey on the impact of the National Quality Framework on providers. A summary of selected results was published in a media release. Further information was also published on their website but unfortunately the results of the complete survey do not seem to have been made available.

6 October 2017

More on Sleep and Rest Practices in Childcare Services

An article on The Conversation, by Queensland academics, provides a comment on the recent National Regulation changes requiring policies on sleep and rest for children (regulation 168(2)(a)(v)).

5 October 2017

Proceeds of Crime Orders Made in Childcare Benefit Fraud Case

In the NSW Supreme Court Case of Application of the Commissioner of the Australian Federal Police; In the matter of Lami, the Australian Federal Police (AFP) sought a restraining order to preserve property (certain bank accounts held by Smart Care Solutions Pty Ltd) pending the making of a forfeiture order under the Proceeds of Crime Act 2002 (Cwlth). The application related to criminal charges brought against Ms Zahraa Saadi Majeed Lami (sole director of IGrow Family Day Care Pty Ltd) in relation to fraudulently claiming child care benefit from the Commonwealth Government. On 4 August 2017, Ms Lami was charged with two counts of obtaining a financial advantage by deception (section 134(2), Criminal Code Act 1995 (Cwlth) and one count of intentionally dealing in proceeds of crime, being money in excess of $1,000,000 under (section 400.3(1) of the Criminal Code). 

The court granted the restraining order. In addition to making of the order, the Court directed Ms Lami to provide to the AFP within 28 days a sworn statement, setting out:
  • all of her interests in property valued at AUD5.000 or more;
  • all of her liabilities valued at AUD5,000 or more.

3 October 2017

Relationship Between Working With Children Check Requirements and National Law

Different criteria apply to whether a person can obtain a working with children check and whether they can work in or operate an education and care service. This was demonstrated in a recent case before the Queensland Civil and Administrative Tribunal: NPJ v Director-General, Department of Justice and Attorney-General. In that case the Tribunal considered whether NPJ should  be allowed to retain their Blue Card (Queensland working with children check).  Initially, compliance action (issue of Prohibition Notice under section 182) was taken, under the National Law, by the Queensland Regulatory Authority (under the National Law) against NPJ as they were deemed an unacceptable risk to children (they had left children unsupervised on a couple of occasions). Subsequently, the Prohibition Notice was withdrawn and NPJ was allowed to care for children on the basis of an enforceable undertaking under section 180 (note the bodies issuing working with children checks and those regulating childcare are different bodies). 

However, despite the Regulatory Authority no longer deeming NPJ to be a risk to children, the Tribunal upheld the previous decision to revoke the Blue Card: 
There is a clear difference between the test which is applied when determining whether a Prohibition Notice should be cancelled under the National Law and the test to be applied under the Working with Children (Risk Management and Screening) Act 2000 when deciding whether an “exceptional case” exists.
The Tribunal has previously rejected the argument that principles brought across from the family law jurisdiction involving “an unacceptable risk of harm” should be resorted to in order to interpret what is meant by the phrase “exceptional case”
The Prohibition Notice was the catalyst for these proceedings. Without that notice, the Tribunal may never have been aware of the Applicant's actions. However, once the Tribunal was seized of the matter then it must deal with it in accordance with the provisions of the Working with Children (Risk Management and Screening) Act 2000 with particular reference to s 228 of that Act. [paras.54-6].
Recently, there was a NSW case reported on by The Sydney Morning Herald in which the report assumed that as the person was permitted to obtain a working with children approval he would obtain approval to be involved in operating a childcare service. This is not necessarily the case as, again, different criteria apply under the two sets of laws. The case heard by the Supreme Court was Children’s Guardian v CHN.


29 September 2017

Refusal to Grant Provider Approval (s.12): CYU v Secretary, Department of Education

This case is similar to that heard by the same Tribunal (NSW Civil and Administrative Tribunal) recently: CZR v NSW Department of Education (see my blog post). However, the case raises some questions about the lawfulness of compulsory assessment sessions for approvals under the National Law.

The case involved a review of a decision by the NSW Department of Education (NSW Regulatory Authority under the National Law) to not grant provider approval to the applicant, CYU. Following the participation in a complusory assessment process, conducted by the Department, the individual, who was to manage or control the applicant’s family day care service (“Mr M”), was assessed not a fit and proper person to be involved in the provision of an education and care service.

During the Tribunal hearing the issue was raised as to whether the Department had power to require Mr M to undergo an assessment and therefore use the assessment results. The Tribunal found that the assessment was not authorised by sections 14 or 261, as submitted by the Department. Those provisions did not allow for such coercive powers to be exercised by the Regulatory Authority in relation to applicants and also that the Department did not have power to impose a fee for such assessments:
It follows... that I am of the view that the evidence of Mr M’s assessment results was unlawfully obtained by the respondent. At the very least, it was improperly obtained. This then raises the issue of whether the evidence should be admitted and, if so, what weight should be given to it (para.32)
In this case the Tribunal exercised its discretion, on public policy grounds, to allow the evidence of the assessment to be used:
In determining whether to admit the evidence of Mr M’s assessment responses and assessment results, I have given great weight to the guiding principles that the rights and best interests of the child are paramount and that best practice is expected in the provision of education and care services. In accordance with these principles, I find that the public policy considerations which favour admission of the evidence outweigh the public policy considerations against admitting it. This includes the public policy of protecting the applicant from unlawful and improper conduct (Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554; [2001] SASC 70 at [113]). Whilst the unlawful conduct of the respondent is concerning, this is not a case where there has been “a serious and deliberate infringement of legal rights” to use the language of Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130. Further, I anticipate that the administration of justice will be protected by the respondent seeking advice about the issues raised in this decision and taking appropriate action in respect of the procedures the Secretary adopts in the future (para.72)
Based on the assessment of the evidence, the Tribunal decided to uphold the decision of the Department to not grant provider approval to CYU:
The applicant has not satisfied me that Mr M is a fit and proper person to be involved in the provision of an education and care service (within s 12(2)(a) of the National Law). This is because Mr M’s assessment results indicate that he has a deficient knowledge and understanding of the National Law and National Regulations and is therefore not “fit” for such involvement. In these circumstances, I am required, by s 15(2) of the National Law, not to grant the applicant a provider approval (para.74)
It should be noted that the difference between this case and CZR v Secretary, Department of Education, is that the issue of the legality of a compulsory assessment process for applicants was not raised in CZR. This case has significance as it raises the issue of the lawfulness of such compulsory assessment processes. The Tribunal found that the National Law and Regulations did not give the Department authority to require applicants for provider approval to undertake a compulsory assessment of their knowledge and understanding of the National Law and the Regulation.

Childcare Service Paperwork

The Daily Telegraph recently ran a story on a recent Australian Childcare Alliance survey and guidance material published by ACECQA in relation to the revised National Law and Regulations.

27 September 2017

Safe Sleep and Rest Practices

The Herald Sun newspaper have reported on the change in the National Regulations requiring services to have policies on sleep and rest (new regulation 168(2)(a)(v)) from 1 October 2017 (except in WA). A more accurate summary of the change is provided by the Red Nose organisation itself and ACECQA.

24 September 2017

National Amendment Regulations 2017

ACECQA released information from the Education Council regarding the revised National Regulations which come into effect on 1 October 2017.

Mandatory Procedures For Attendance of Sick Children at Childcare

The Daily Telegraph carried a story on the call for mandatory, consistent procedures governing the attendance of sick children at childcare.

22 September 2017

Amendment to National Regulations - Commencing 1 October 2017

NSW has published the amendments to the National Regulations on its legislation website which are to come into effect on 1 October in parallel with the changes to the National Law (see previous blog). The regulations are known as the Education and Care Services National Amendment Regulations 2017 and can be found from this link. These amendments will be adopted by the other jurisdictions (except WA) to come into effect on 1 October 2017.

Proposed Victorian Child Information Sharing Legislation

The Victorian Department of Health and Human Services has published a consultation paper in relation to proposed legislation to enable organisations (prescribed by the legislation) to share information with other organisations who work with children and young people, to facilitate prevention of harm or early intervention.The model proposed is similar to that which operates in NSW. As well as facilitating exchange of information amongst government bodies it is proposed information could be shared with people such as childcare providers, nurses and doctors.

It is proposed that in order for information to be released under the scheme:
      Both the provider and the recipient of the information must be prescribed entities. A prescribed organisation may also share information with a child, a person with parental responsibility for a child, or a person with whom the child is living, if the prescribed organisation reasonably believes that the provision of the information to that child or person is necessary to manage a risk to the child’s safety
      A three-part test must be met for information to be released -
    the information promotes the safety or well being of a child or group of children
    there is a reasonable belief that the information may assist another prescribed entity to undertake specified activities relating to that well being or safety
    there is a reasonable belief that the information is not excluded information (as detailed in the legislation).