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.

18 July 2017

Victorian Working With Children Act Changes

Further to my previous blog, the Department of Justice and Regulation has published additional resources explaining the changes which come into effect on 1 August 2017. That information can be accessed here.

13 July 2017

Oz Family Day Care Closure

The Courier Mail recently carried a story on the cancellation of the Queensland service approval of Oz Family Day Care Pty Ltd, initially covered in my blog.

9 July 2017

Inadequate Supervision (Section 165, National Law): CEO of the Department of Local Government and Communities, Mission Australia Early Learning

This is another case where the West Australian State Administrative Tribunal (WASAT) made an order which gave effect to the terms of settlement in relation to a matter brought before the tribunal by the WA Regulator under the National Law (Department of Local Government and Communities).

This case concerned contravention of of section 165, National Law, in that the approved provider failed to ensure that all children being educated and cared for by the service were adequately supervised at all times. In this case, a penalty of $9,500 and legal costs of $2,000, were imposed on the approved provider (Mission Australia Early Learning). The case concerned the approved provider's service at Warnbro. In October 2016, a five year old child with additional needs left the premises unnoticed and unaccompanied. A member of the public advised the service that a child had crossed a road and staff located the child. Further details of the circumstances and remedial action taken is detailed in the Statement of Agreed Facts attached to the decision.

8 July 2017

Cancelation of Service Approval: Oz Family Day Care Pty Ltd v Department of Education and Training

This case was an application from the approved provider (Oz Family Day Care Pty Ltd) for a review of the decision of the Queensland Regulator under the National Law (Department of Education and Training) to cancel its Queensland service approval. It also holds a service approval in Victoria. The cancellation was originally stayed by the Tribunal.

The Department issued a show cause notice for cancellation under section 78(2), following a number of compliance visits and the issue of an emergency action notice (under section 179). Full details of the compliance history of the service is outlined in the decision. The service approval was cancelled by the Department in February 2017 under section 77.

The Tribunal looked at whether the grounds for cancellation had been made out:
Cancellation will only be a correct (lawful) decision if one or more of the grounds in s 77 are established. The only grounds relied on by the delegate [Department] were those in ss 77(a) and (d), concerning risk to children and non-compliance with conditions respectively (para. 32).
The Tribunal, in particular, looked at the elements that had to be established under section 77(a):
There are four elements to s 77(a):
a) a reasonable belief formed by the decision maker (speaking to the evidence relied on and the standard of proof, the civil standard, taking into account the seriousness and consequences of the decision);
b) that the continued operation of the service (being the focus on present and future operations);
c) presents an unacceptable risk (measured in accordance with standards stated in cases such as M v M and Fardon, contextualised appropriately for the National Law and its purposes);
d) to the safety, health or wellbeing of any child or class of children being educated and cared for by the education and care service.

The elements are to be considered in the context that the rights and best interests of the child are paramount. (paras.33-34)
The Tribunal extensively reviewed the evidence presented by both parties and decided to confirm the cancellation of the service approval:
The nub of the Applicant’s additional evidence took the form of assertions and assurances. In the face of the precise and voluminous evidence supporting the cancellation decision, it was always a hopeful approach rather than a persuasive one.
The evidence did not discharge the burden. Rather it tended to confirm that the continued operation of the service presented an unacceptable risk because of the systemic failings, and that Oz FDC continued to operate in breach of its statutory conditions.
In those circumstances, the conditions in s 77 for cancellation are met, enlivening the discretion to cancel. I would cancel the service approval because of the extent of the condition breaches alone. Further, the systemic failings shown in the cancellation notice findings and confirmed on the evidence (despite the improvements and changes) also warrant cancellation. Suspension as an
alternative is not appropriate because of the unacceptable risk and condition breaches (paras. 68-70).



 

6 July 2017

Proposed Merger of Outside School Hours Care Operators

The media has extensively covered the proposed merger between Camp Australia and Junior Adventures Group which has now been referred to the ACCC. See the report on ABC Online and in the Financial Review.

4 July 2017

Operation of Unapproved Education and Care Service: CZO v Secretary, Department of Education

In this case before the NSW Civil and Administrative Tribunal (NCAT), the Department (as the Regulatory Authority under the National Law) sought an order from NCAT prohibiting the approved provider (CZO) from continuing to operate a service for which service approval was cancelled. NCAT found it did not have authority to issue such an order, and therefore this resulted in the matter being heard by the Supreme Court in Secretary, Department of Education v Joys Child Care Ltd (see my previous blog on this case here).

Quensland Childcare Centre Sued for Burns Suffered by Child

The Gold Coast Bulletin carried a story about a parent suing her childcare centre after her child allegedly suffered burns.

3 July 2017

Victorian Wrongs Amendment (Organisational Child Abuse) Act 2017

This legislation, which amends the Victorian Wrongs Act 1958, came into effect on 1 July 2017. It will have significant impact on child care services in relation to liability for any child abuse that occurs to children in their care. The legislation has been introduced in response to issues identified by the Family and Community Development Committee of the Victorian Parliament (Betrayal of Trust Report) and the Royal Commission into Institutional Responses to Child Sexual Abuse. 

The aim of the legislation is to make it easier for those subject of child abuse, by certain organisations, to sue those organisations for damages. As stated by the Attorney General in the second reading speech before Parliament:
As recommended by Betrayal of Trust, the bill amends the Wrongs Act 1958 to create a duty of care that will allow an organisation to be held liable in negligence for specified contexts of organisational child abuse committed by individuals associated with the organisation, unless the organisation proves that it took reasonable precautions to prevent the abuse.
Section 91(1) imposes the duty of care in negligence and section 91(2) outlines that duty:
A relevant organisation owes a duty to take the care that in all the circumstances of the case is reasonable to prevent the abuse of
a child by an individual associated with the relevant organisation while the child is under the care, supervision or authority of the relevant organisation.
"Relevant organisation" is defined in section 88 as an "...entity (other than the State) organised for some end, purpose or work that exercises care, supervision or authority over children...". There are however, a number of qualifications to this definition, depending on its structure.
"Abuse" is defined as physical or sexual abuse (s.88). The terms physical and sexual abuse are also defined, as is "authority". 
Section 90 outlines the circumstances in which an individual is regarded as associated with a relevant organisation. The definition is very broad and, amongst other things, includes employees, volunteers, contractors and in some circumstances, where care, supervision or authority has been delegated or contracted out to another organisation.

Interestingly, section 91(3) provides that where abuse is established and is linked to the organisation:
...the relevant organisation is presumed to have breached the duty of care...unless the relevant organisation proves on the balance of probabilities that it took reasonable precautions to prevent the abuse in question.
  Note
Reasonable precautions will vary depending on factors including but not limited to —
(a) the nature of the relevant organisation; and
(b) the resources that are reasonably available to the relevant organisation; and
(c) the relationship between the relevant organisation and the child; and
(d) whether the relevant organisation has delegated the care, supervision or authority over the child to another organisation; and
(e) the role in the organisation of the perpetrator of the abuse.
The legislation only applies to abuse that occurs on or after 1 July 2017 (s.93).

 

Family Day Care Compliance in NSW

The Daily Telegraph recently carried a story on the compliance activity by the NSW Regulator in relation to Family Day Care services under the National Law.

2 July 2017

Inadequate Supervision (Section 165, National Law): Recent WASAT Decisions

Recently, the West Australian State Administrative Tribunal (WASAT) made a number of orders which gave effect to the terms of settlement in relation to matters brought before the tribunal by the WA Regulator (Department of Local Government and Communities) for contraventions by approved providers of s.165, National Law, in that they by failed to ensure that all children being educated and cared for by the service were adequately supervised at all times.

In Department of Local Government and Communities, the Catholic Education Commission of Western Australia Trustees Association Inc. (CECWATA), a penalty of $8,500 and legal costs of $1,500, were imposed on the approved provider (CECWATA). The case concerned CECWATA's service at Sacred Heart Primary School, Thornlie. In January 2017, a five year old child with ADHD left the service unnoticed and unsupervised and walked about 2.8 km to his aunt's residence. The child's absence was noted for about a 15 minute period. The full details are set out in the agreed facts in the case appended to the order.

The same approved provider was also involved in another matter before the Tribunal in which an $8,000 penalty and legal costs of $1,000 were imposed. That case concerned its service at St. Columba's Primary School, Bayswater. In this case, in February 2017, a six year old child left the service unnoticed and unsupervised through a gate that had a faulty self-locking mechanism around 5pm. A member of the public found the child 250m from the service at around 5.19pm and called the mother. The full circumstances are set out in the agreed facts in the case appended to the order. WA Today published a report of this case as well.

In CEO of the Department of Local Government and Communities, Horizons Childhood Learning Centres Pty Ltd the Tribunal imposed a $12,000 penalty and legal costs of $1,000. The case concerned the approved provider's service called Horizons Childhood Learning Centre South Fremantle OSHC and a five year old child leaving unsupervised and unaccompanied by an educator or any authorised adult. But no agreed facts are attached to the decision.

(Note: in WA rather than prosecute in a court (as is the case with other States and Territories) certain breaches of the National Law may be heard by WASAT as a disciplinary action under s.188B of the Schedule to the Education and Care Services National Law (WA) Act 2012)

Introduction of Reportable Conduct Schemes

A number of States have introduced reportable conduct schemes from 1 July and accordingly there has been extensive media coverage.

The Canberra Times carried a story on the problems with the ACT Scheme.

The Townsville Bulletin carried a story on the Queensland scheme. The Department of Education and Training has published information about the changes on its website.

Tasmanian Schools Age Changes & Impact on Childcare Sector

The proposed changes to the starting school age continues to get coverage in The Examiner.

Childcare Worker Criminal Trial in South Australia

The Advertiser carried coverage of the trial of a childcare worker for sexual offences.

Childcare Sector in Australia

The Urban Developer carried a story on the investment opportunities in childcare and another story on investment in new centres in Melbourne.

The Daily Telegraph carried a story on a proposed merger in the outside school hours care sector. The Sydney Morning Herald also covered the story and possible impacts on fees.

The Conversation also carried a story on the OECD's Starting Strong report, which included an overview of childcare in Australia, including comparison with other OECD countries.

17 June 2017

Stay of Cancellation of Provider Approval: DCB v Secretary of the Department of Education NSW

Another NSW case reviewed by the NSW Civil and Administrative Tribunal (NCAT) from a decsion of the NSW Regulatory Authority to cancel provider approval under section 31 of the National Law.

In this case the family day care approved provider, DCB, applied to NCAT to stay the decision of the Department to cancel its provider approval. The approval was cancelled as a result of breaches of the National Law identified during an assessment and rating visit. Details of the breaches are not specified in the judgment. The Tribunal decided to stay the decision to cancel the provider approval pending a full hearing of the matter (paras. 57-61):
The ultimate determination of the correct and preferable decision must regard the best interests of the child who may receive the benefit of the service as paramount. 
The National Law facilitates the provision of a national education and care services quality framework for the delivery of education and care services to children. The fact that the applicant received service approval to run a Family Day Care Service is an indication that the applicant was considered capable of providing quality education and care services to children. The fact that the service has operated successfully is also an indication that it has been viewed favourably by parents of the children who benefit from its service. 
The applicant says that the administrative review will be rendered nugatory if there is not a stay. The respondent says that there was an unacceptable risk of harm to the children because the Working with Children Check Clearances were not provided, the risk assessment of residences was not undertaken, and there was a complaint by a member of the public. The respondent submitted that there were hazardous environments for the children. 
A successful review would be useless or futile unless the stay was granted. In all of the circumstances, including that factor, a stay of the operation of a decision pending the review is indicated. The overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances, and the interests of justice in this matter require that the decision not be acted upon until the review is determined. 
An order under section 60 of the Administrative Decisions Review Act to stay the operation of the decision is desirable to do so after taking into account the matters required in the subsections. In particular it is in the interests of the applicant for the service to continue to operate unimpeded until a final determination is made. It is in the interests of the parents and children for the service to continue to operate until a final decision is made. It is in the public interest for the service to continue to operate provided it operates properly and within the National Law. Since it is in dispute as to whether there is compliance by the applicant with the National Law, in relation to some of the breaches alleged, and there are concessions made in relation to some other breaches alleged the proposals made for remedying those alleged breaches, it is not in the public interest to reach a precipitous and potentially damaging conclusion before considering all of the evidence.


 

Cancellation of Provider Approval: CYD v Secretary of the Department of Education NSW

This is another case from the NSW jurisdiction before the NSW Civil and Administrative Tribunal (NCAT) involving a review of a decision by the NSW Regulatory Authority to cancel an approval under the National Law.

CYD v Secretary of the Department of Education NSW involved cancellation of the provider approval of a family day care provider. Following a compliance visit a number of breaches of the National Law and Regulations were identified by the Department. These related to, amongst other things, working with children checks, qualifications, records,and excursions, which are all detailed in the judgement. In response to these breaches the Department issued a show cause notice cancelling CYD's provider approval on the basis of breach of the condition of provider approval requiring compliance with the National Law (s.19(2)) under s.25; and that the approved provider was not a fit and proper person under s.21. However, the Tribunal did not believe that these grounds were established and reinstated the provider approval. The Tribunal stated the following in its decision paras. 83-92):
The determination of the correct and preferable decision must regard the best interests of the child who may receive the benefit of the service as paramount.
The National Law also facilitates the provision of a national education and care services quality framework for the delivery of education and care services to children. The fact that the applicant received provider and service approval to run a Family Day Care Service is an indication that the applicant was considered capable of providing quality education and care services to children. It did so for a number of years.
The Tribunal is not confined in its consideration of this matter to the reasons identified in the Reasons for Decision. The initial examination by the Regulatory Authority was restricted to 3 out of 59 educators, and there have been significant enhancements to the administration, systems, policies and procedures which the applicant has implemented.
The applicant says that the remedied policies, systems and procedures now implemented by the applicant will be adequate to ensure that the children are not exposed to risk. That is likely to be so, and further compliance visits will ensure there is no repetition of identified failings.
The Tribunal accepts that there has been no deliberate non-compliance with the requirements of the National Law and any non-compliance was largely the result of an inadequate understanding of the relevant requirement, or deficiencies in the applicant’s processes arising from inadequate administration. The applicant identified in its evidence and submissions that many of these issues have been addressed as a result of an examination of procedures and the manner in which the family day care service is administered.
The evidence of the applicant is that any prior deficiencies have now been remedied. There is evidence that the applicant has acted with deliberate and thoughtful intent to improve its ability to provide appropriate care for the children in its education and care. Despite the inability of the director to be able to identify a specific policy in his oral evidence, it is clear that there are procedures and oversight implemented to address the deficiencies which have been acknowledged.

The assessment whether the applicant is a fit and proper person is a value judgment by the Tribunal; it takes its meaning from its context, the activities in which the person is engaged and the ends to be served by those activities......
The applicant and its director have properly acknowledged failings in compliance with the National Law and have taken reasonable steps to address those shortcomings. The matters raised in relation to other services which have had their provider approval cancelled or the approval for childcare meant benefits cancelled by the Commonwealth Department of education and the indication that the respondent is currently “considering” issuing a show cause notice to one of those services are matters which bear upon the general competence of the applicant and its director to adhere to the legislative scheme. In addition the respondent relies upon assessments undertaken of the Director in August 2016 and his knowledge of the law. It is asserted that the Director gave responses which were “inadequate”. The Director is not a lawyer. The Director was represented by lawyers before the Tribunal. The evidence is that the applicant has obtained the services of a consultancy to ensure it complies with the National Law. In a context where the highest standards of care are sought to be provided to children, and one of the roles of the National Law and the Regulatory Authority is to improve services currently provided to children, the actions of the applicant and the ends to be served by those actions indicate that at this time the applicant is a fit and proper person to hold a provider approval. There is insufficient evidence to conclude that the director of the applicant will not keep to the standards which he has outlined in his evidence to this Tribunal.
The Tribunal therefore finds that the applicant is currently a fit and proper person.
The role of parents is to be respected and supported under the principles to be applied by the National Law. It is in the best interests of children receive quality childcare and for their parents to the assured that their children are in safe hands. It is in the best interests of children to have improved early childhood education from providers who are able to analyse their deficiencies and take appropriate steps to improve the delivery of the service.
It is clear from this decision that the Tribunal regards the Regulatory Authority's power to cancel provider approval to be one of last resort or at least to be exercised where there is a clear risk to children. It should also be mentioned that this is the first case under the National Law that deals with the concept of "fit and proper person" under the Act, albeit briefly, see paras. 73-74, 89-91.


 

16 June 2017

Operation of Unapproved Education and Care Service: Secretary, Department of Education v Joys Child Care Ltd:

This is another interesting case from NSW. In this case the matter was heard by the highest court in NSW, the Supreme Court. The full judgement is available here.
The case concerned a service at Parramatta operating under the name “Joys”. Until earlier this year, the service was operated by the first defendant, Joys Child Care Ltd (JCC). Its ultimate holding company is the second defendant, Chinese Students Association Inc (CSA). The third defendant, Mr Shang, is one of the two directors of JCC. He is also registered as the public officer of CSA with the Australian Charities and Not-for-profits Commission. The plaintiff in this case was the NSW Department of Education which sort orders against the defendants.
By way of background, for reasons not detailed in the judgement, the
Department (as the NSW Regulator under the Education and Care Service National Law) cancelled JCC’s provider approval on 29 March 2017, effective from 12 April 2017. By operation of section 34(1) of the National Law, the service approval for Joys was also cancelled. 

JCC applied for a review of this decision to the NSW Civil and Administrative Tribunal (NCAT). However, before this matter was heard, the Department sort an order restraining JCC from operating the service until or unless an order in JCC’s favour is made by NCAT. NCAT found that it did not have such power and so the matter came before the Supreme Court (this case). It appears that the service had continued to operate since the decision to cancel its approval was notified to Mr Shang and had continued to operate since the approval was suspended. According to Mr Shang, although the service was still operating, it was not being operated by JCC but under an agreement between CSA and a third party, Divine Family Day Care Pty Ltd (Divine). The Department sought injunctions against JCC, CSA and Mr Shang as the continued operation of the service was a breach of section 103 of the National Law which should be restrained by the Court. During the proceeding, Mr Shang (who was representing all defendants)  said that JCC was not operating the service and would not do so unless it was successful in NCAT. He said that if the Court decided that the Service Agreement did not allow continuation of the service, it would cease to operate. On this basis the court rather than granting an injunction gave a summary judgement (paras 57-8):
In my opinion, it is quite clear that continued operation of the Centre under the Service Agreement contravenes s 103 and is unlawful. This conclusion is based on my interpretation of the statute, the Service Agreement and uncontested facts. In my view, the circumstances are sufficiently clear to justify summary judgment.
Given the Department’s agreement in the first instance to proceed by way of declaration, I propose to make a declaration that operation of the Centre is unlawful unless and until JCC is successful in having its approval reinstated. I will, however, grant liberty to apply to seek injunctive relief if that subsequently proves necessary.
 

13 June 2017

Child Safety Mandatory Reporting Requirements in Queensland

As I mentioned in a previous blog, from 1 July 2017, under changes to the Child Protection Act 1999 (also know as Mason's Law), early childhood education and care professionals will be required to report child safety concerns to the Queensland Department of Communities. According to a report in the Townsville Bulletin childcare workers are already increasingly making reports to the Department even before the law comes into effect.

10 June 2017

Tasmanian School Age Changes & the NSW Childcare Market

Tasmanian School Age Changes
The Advocate carried a story on the impact of proposed changes to lower the school age on one chilcare centre.

NSW Childcare Market
The Daily Telegraph had another story on the government's and the industry's differing views on the state of the childcare market in NSW.

DPP (Cth) v Dhal: Childcare Benefit Fraud

This is a Victorian County Court criminal case in which the defendant (Adior Dhal) pleaded guilty to one charge of dishonestly causing a loss to a Commonwealth entity under section 135.1(3), Commonwealth Criminal Code. The defendant was a family day care educator that was charged as part of a broader operation by the Australian Federal Police in regard to family day care fraud. In this case the educator submitted false times sheets to the family day provider who submitted them to the Commonwealth Department for payment. The payment was made to the provider and then given to the educator, less an administration fee. In essence, the educator dishonestly claimed and received payment for childcare services that were not provided.

Unusually, for a plea of guilty, the details of the case were published and you can see the transcript of the judge's sentencing here. The defendant was convicted and sentenced to 12 months imprisonment, wholly suspended for two years, and released under a Recognisance Release Order of $1,000 to be of good behaviour for two years and subject to lawful directions of a psychologist and engage in trauma and gambling counselling with bi-annual reports to be provided to the Court and Commonwealth Director of Public Prosecutions (DPP) for a period of two years. She also had to repay $82,813.70.

6 June 2017

News & Publications: Tasmanian Education Act & Victorian Child Related Legislative Changes

Tasmanian Education Act Changes 
The Circular Head Chronicle carried an article on the proposed changes to the Education Act and its affect on the childcare sector. 

Victorian Child Related Legislative Changes 
In response to The Royal Commission into Institutional Responses to Child Sexual Abuse recommendations aimed at strengthening the protection of children through Working with Children Checks (WWCC), changes will come into effect on 1 August 2017 to the Working with Children Act 2005. Some of the changes include expanding the definition of "direct contact" and removing references to supervision. Further details are available from the WWCC website. The legislation introducing these changes is the Working with Children Amendment Act 2016 which can be found at Victorian Government legislation website.
It should also be mentioned that legislation will come into effect progressively from 1 July 2017 that introduces a reportable conduct scheme to oversee allegations of child abuse and misconduct. Victorian childcare services will fall under the scheme from 1 January 2019. Further information is available from the Commission for Children and Young People website.The legislation introducing the scheme is the Children Legislation Amendment (Reportable Conduct) Act 2017 which can be found at the Victorian Government legislation website.

4 June 2017

DAM v NSW Department of Education and Communities: Cancellation of Service Approval

This is another case in which an approved provider of a family day care service (in this case "DAM") has sought a review of a decision to cancel service approval by the NSW Regulatory Authority (Department of Education and Communities) under the Education and Care Services National Law. The full facts involved are not detailed in the Civil and Administrative Tribunal decision (which can be found here) as this case only concerned a stay on the decision of the Department to cancel the service approval until a further, more complete hearing before the Tribunal could be held. The cancellation was to come into effect in April 2017.
The decision indicates that following a monitoring visit by the Department, in which there were alleged breaches of the National Law, the Department issued a show cause notice and subsequently decided to cancel the service approval under s.79. 
The Tribunal decided that a stay of the Department's decision was appropriate as it was in the best interests of the children for the service to continue pending a further hearing (paras. 55-58):
The ultimate determination of the correct and preferable decision must regard the best interests of the child who may receive the benefit of the service as paramount.
The National Law facilitates the provision of a national education and care services quality framework for the delivery of education and care services to children. The fact that the applicant received service approval to run a Family Day Care Service is an indication that the applicant was considered capable of providing quality education and care services to children. The fact that the service has operated successfully is also an indication that it has been viewed favourably by parents of the children who benefit from its service.
The respondent agreed that children would have to go elsewhere if this childcare centre closed down and agreed that there was no serious imminent risk in the Family Day Care Service continuing to operate whilst the final decision is made by the Tribunal.
A successful review would be useless or futile unless the stay was granted. In those circumstances a stay of the operation of a decision pending the review should therefore be granted. The overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances, and the interests of justice in this matter appear to require that the decision not be acted upon until the review is determined.

2 June 2017

News & Publications: Immunisation; Fraud; Planned Market for Childcare; Childcare Funding

No Jab, No Play Immunisation Policy 
An article in WA Today summarises the immunisation situation nationally.

Family Day Care Fraud
The Australian recently had a story about the Commonwealth Government targetting family day operators who are claiming welfare payments.

Also 9News.com.au had a report in relation to childcare operator Melissa Higgins who has been denied bail pending an appeal against her fraud convictions. 

Planned Market for Childcare
The University of Melbourne's Pursuit publication recently had an article on  research being done by its Centre for Market Design on the concept of a matching market for childcare.

Childcare Funding
The Sydney Morning Herald recently published a comment article on the importance of childcare funding.

31 May 2017

News & Publications: G8; Mandatory Reporting in Queensland; CCB Fraud

Childcare Providers
There have recently been a few articles on the financial circumstances of childcare provider G8 including in the The Sydney Morning Herald. There was also a report on the governance of G8 in The Sydney Morning Herald.

New Child Safety Mandatory Reporting Requirements in Queensland
From 1 July 2017, under changes to the Child Protection Act 1999, early childhood education and care professionals will be required to report child safety concerns to the Department of Communities, Child Safety and Disability Services, where there is a reasonable suspicion that the child has suffered, is suffering, or is at unacceptable risk of suffering, significant harm caused by physical or sexual abuse, and there is not a parent willing and able to protect the child from harm. Further information and resources are available from the Department's website.

Childcare Benefit Fraud Case
News.com.au recently reported on the sentencing of family day care provider Melissa Higgins who operated the Aussie Giggles service. The Sydney Morning Herald also carried a report.

26 May 2017

Supervision - Requirements under the Education and Care Services National Law

As some of you are aware I am in the process of writing a book on childcare regulation, specifically a guide to the National Scheme (Education and Care Services National Law and Regulations). I hope to publish this at the end of this year. In the interim, from time to time, I will publish extracts from the current draft on this blog and would appreciate any feedback. As supervision has been a recent topic of this blog, I have started with the section on supervision.

Supervision

Supervision of Children

Section 165 requires children to be adequately supervised:
  • the approved provider (s.165(1)) and nominated supervisor (s.165(2)) must ensure that all children being educated and cared for by the service are adequately supervised at all times that the children are in the care of the service. 
  • a FDC educator must ensure that any child being educated and cared for by the educator as part of the service is adequately supervised (s.165(3))

It is an offence to fail to adequately supervise a child at all times with the penalty being up to $10,000 in the case of an individual, and $50,000 in any other case. The Regulatory Authority can take appropriate compliance action. 

What is Supervision under Section 165?
 
What constitutes “supervision” is not specified in the National Law. [1] The ordinary dictionary definition is “the act or function of supervising; oversight; superintendence”.  [2] More guidance is given in the Fair Work Australia case of Read v  Gordon Square  Child Care Centre Inc T/A  Gordon Square  Early Learning Centre [3] which was required to examine the definition of supervision under s.165 in  the context of an unfair dismissal case. In that matter it was found that: [4]

The actions of the Applicant in removing herself from the room where Child A was on 6 March 2012 to answer the phone meant that she was no longer monitoring the child actively and diligently. As the Applicant admitted, she was thinking about whether or not a staff member was ringing in to say they were ill. Her actions were a breach of the requirements of the National Law as explained in the Guide and a breach of the Centre Policy. 

In that case the following extract from the Guide to the National Law and National Regulations, published by ACECQA, was quoted: [5]

Educator-to-child ratios alone do not determine what is considered adequate supervision.

Supervision is critical to the safety of children. At its most basic level, supervision helps to protect children from hazards or harm that may arise in their play and daily routines. Adequate supervision means that an educator can respond immediately, including when a child is distressed or in a hazardous situation.

Effective supervision also requires educators to be actively involved with children. It is not the intention of this requirement that educators merely ‘stand back and watch’.

Every child should always be monitored actively and diligently. This means knowing where children are at all times. Children of different ages and abilities will need different levels of supervision. In general, the younger children are, the more they may need an adult to be physically present and close by to support and help them. 

Unauthorised Persons on Premises 

Unauthorised persons are not allowed to be on the service premises unless under direct supervision. Note that this provision only applies to States and Territories that have a working with children law (s.170(1)). [6] The term “direct supervision” is not defined in the National Law. The requirement would seem to be more than just mere supervision.

The National Law provides that the approved provider (s.170(1)), and nominated supervisor (s.170((3), must ensure that an unauthorised person does not remain at the premises while the children are being educated and cared for unless the person is under the direct supervision of an educator or other staff member [7] of the service. In addition, s.170(3) provides that a family day care (FDC) educator must ensure that an unauthorised person does not remain at the premises while the children are being educated and cared for unless the person is under the direct supervision of the educator. It is an offence to fail to do this with the penalty being up to $10,000 in the case of an individual, and $50,000 in any other case. The Regulatory Authority can take appropriate compliance action.

The National Law defines who are unauthorised persons and therefore not subject to the provisions of ss.170(2)-(4):


Unauthorised Person Means a Person Who is Not (s.170(5)):
Comment/Explanation
A person who holds a current working with children check or working with children card
See s.5(1) for definitions of these terms
A parent or family member of a child who is being educated and cared for by the service or the family day care educator
See s.5(1) for definition of “parent”  but s.170(6) provides that the reference to a parent or family member of a child does not include a person:
·        whose access to the child is prohibited or restricted by an order of a court/tribunal of which the approved provider, nominated supervisor or family day care educator is aware; or
·        who is an inappropriate person within the meaning of s.171 [8]
This provision compliments the provisions of  r.157 allowing parents  access to the premises in certain circumstances (see section 6.2.4)
An authorised nominee of a parent or family member of a child who is being educated and cared for by the service or the FDC educator
s.170(5) defines authorised nominee as meaning a person who has been given permission by a parent or family member of the child to collect the child from the service or the FDC.
This provision relates to r.160 which relates to keeping child enrolment records
In the case of an emergency, medical personnel or emergency service personnel
-
A person who is permitted under the working with children law of this jurisdiction to remain at the service premises without holding a working with children check or a working with children card
This refers to persons who under the appropriate law (see s.5(1)) are not required to have a working with children check because of the nature of their interactions with children, e.g. tradesmen visiting the premises


Supervision of Visitors
Specific provisions apply to FDC services under r.166:
  • approved provider must take all reasonable steps to ensure that a child being educated and cared is not left alone with a visitor to a residence or venue 
  • FDC educator must not leave a child being educated and cared for with a visitor to the residence or venue. 
It is an offence to fail to comply with these requirements with the penalty being $2000.


[1] Although not examining the definition of supervision, there have been cases under a similar provision of the Victorian Children’s Services Act 1996: ABC Developmental Learning Centres Pty Ltd v Wallace [2006] 171; ABC Developmental Learning Centres Pty Ltd v Wallace [2007] VSCA 138. Both cases concerned the same circumstances where a child had scaled a fence by putting a square foam cube and against it and left the service while staff were not looking.

[2] Macquarie Dictionary, 7th ed., Macquarie Dictionary Publishers, Sydney 2017.

[3] [2012] FWA 7680.

[4] [2012] FWA 7680, para. 102.

[5] [2012] FWA 7680, para. 100.

[6] See s.5(1) for definition.

[7] See s.5(1) for definition of staff member


[8] This provision relates to the power of Regulatory Authority to exclude certain persons from service premises.