2 August 2020

Changes to Queensland Blue Card System

From 31 August, a number of changes to the blue card system come into effect, including the requirement for Queensland childcare workers to have a valid blue card before they can start work. Comprehensive information on the changes is given on the Queensland Government website.

Transporting Children as Part of Childcare Service

The Department of Education has published guidance for approved providers of both centre-based and family day care services operating in Queensland that transport children as part of their service.

31 July 2020

Stay of Cancellation of Provider Approval: Mother’s Choice Family Day Care Pty Ltd v Secretary, Department of Education

The NSW Civil and Administrative Tribunal recently stayed the decision of the Department to cancel the provider approval of Mother’s Choice Family Day Care Pty Ltd under section 33(1)(a)(i), Children (Education and Care Services) National Law (NSW). The decision was stayed until a further hearing by the Tribunal and on the following conditions:
(1)   Mother’s Choice Family Day Care Pty Ltd is prohibited from enrolling more than 100 children at Kids Choice Family Day Care Pty Ltd at any one time.
(2)   Mother’s Choice Family Day Care Pty Ltd is prohibited from engaging or registering more than 17 educators with Kids Choice Family Day Care Pty Ltd.
(3)   Mother’s Choice Family Day Care Pty Ltd is to suspend the provision of education and care by the following educators: Aliaa Kobbanchi, Nabila Quadrat, Chania El Mir, Shaista Khan, Maryan Mohamed and Shukira Abubeker.
(4)   Mother’s Choice Family Day Care Pty Ltd is prohibited from engaging and registering Waad Elchehni with Kids Choice Family Day Care Pty Ltd.
(5)   Mother’s Choice Family Day Care Pty Ltd is to provide proof of the suspensions arising under condition (3) to the respondent by 5:00 pm on 30 June 2020.

25 July 2020

Planning Application: Hume Childcare Pty Ltd v Maroondah City Council

This case relates to an appeal to the Victorian Civil and Administrative Tribunal against a decision by the Maroondah City Council to refuse to grant a permit for the construction of a 139 place childcare centre at Canterbury Road, Heathmont. A number of local residents also opposed the development. The case is interesting as it outlines the approach taken in Victoria in relation to planning applications and local need. As stated by the Tribunal (at paras.22-23, 25):
In submitting that the capacity of the centre is excessive, Mr Davidson and other neighbours submit that there is not a demonstrated need for the proposed number of places and that there are other existing and planned centres nearby to fulfil any local need for childcare.
The Tribunal has often commented that in assessing whether a proposal services a local need, a proposal does not need to demonstrate economic viability. Economic viability is a matter that sits outside of planning considerations. The question of need, in a town planning sense, is usually to determine if there is a need for a service that may outweigh amenity impacts that may arise from the proposed use. For a non-residential use in a residential zone, this is in effect a question of whether the use, that may have character and amenity impacts that are different to residential use, can be justified and is reasonable because of the benefits the use brings to the area by way of fulfilling a local need for that use.....
In the case before us, we accept that there must be some local need, otherwise the proponent would not be pursuing the application as it would not be economically viable. However, while an additional childcare centre in the general residential area may be viable, nothing was put to us that this is the only site that could accommodate demand for childcare places in the local area, thereby elevating the issue of need in an assessment against other matters.
The Tribunal assessed the amenity impacts and concluded that "[w]e are satisfied the proposed use does not result in any unreasonable amenity impacts by way of noise, traffic, on-street car parking overlooking, or visual bulk." (para. 68). The Tribunal then assessed whether the proposed development was consistent with the character of the area and concluded (at para. 104):
We are satisfied that both the built form and any impacts of the scale of use are reasonable for the site location. We find the proposal is not too intense and therefore, for the reasons given above, the decision of the responsible authority is set aside. A permit is granted in accordance with the conditions set out in Appendix A.




1 July 2020

Cancellation of Child Care Benefit Approval: Al-Huda Pty Ltd and Secretary, Department of Education and Training

In this matter before the Australian Administrative Appeals Tribuna,l the question to be decided was whether the applicant’s (Al Huda Pty Ltd) approval as a provider of child care services should be cancelled or some other sanction or no sanction should be imposed. The Commonwealth Department of Education and Training cancelled the provider approval of this Family Day Care provider after it identified non-compliance with the family assistance law, including reporting care when educators or children being claimed for were overseas; child swapping; reporting sessions of care as absences before care for the child commenced and after it ceased; Late reporting of enrolments and late submission of attendance records; reporting sessions of care for children who attended other services when care was reported to have occurred; reporting care that occurred in the home of the child; reporting sessions of care where no-one was eligible to receive CCB or CCR; and receipt of payments that could not be passed on to the relevant individuals and failed to remit payments to the department. The cancellation was previously stayed by the Federal Court (see previous blog post).
The Tribunal concluded that the applicant was not a fit and proper person and that the approval should be cancelled because (para. 194):
  • "..the Applicant’s non-compliance shows that it has resulted in significant and multiple overpayments of CCB and is likely to result in significant and multiple overpayments if the approval is not cancelled because of its demonstrated past and continuing fundamental failure of governance and its lack of understanding of its obligations."
  • "..the Applicant has demonstrated a reckless disregard for the obligation to comply with conditions for continued approval."
  • the Applicant is not a fit and proper person as "the Applicant’s non-compliance with Commonwealth and State laws (the National Law) is serious, frequent and ongoing"; the non compliances demonstrate "...that the Applicant had no, or inadequate, governance arrangements to ensure that the Applicant, its staff, educators, and parents/guardians complied with the family assistance law"; "...the Applicant has a poor record of administering Commonwealth funds because the Applicant has a debt to the Commonwealth, and has on numerous occasions, failed to pass on a fee reduction and not immediately remitted the payment to the Respondent."; "...the Applicant owes a significant debt to the Commonwealth."; "...the Applicant has some experience as a provider but as found above, its expertise is not commensurate with the length of its experience, as demonstrated by its past and on-going non-compliance with and lack of understanding of its obligations under the family assistance law."; and the Tribunal was "...not satisfied that the Applicant's recently adopted and proposed procedures and policies will ensure that it complies with its obligations under the family assistance law."
  • "the Applicant’s non-compliance with the educator to child ratio and its lack of knowledge of when, where and whether care took place, as demonstrated for example, by its non-compliance in relation to educators and children overseas and care in the child’s own home, shows that the non-compliance constitutes an unacceptable risk to the safety, health or wellbeing of children being cared for..."
  • "...little weight should be given to the recently implemented and proposed policies and procedures because they do not address the fundamental governance problem of unreliable records and evidence from Ms Tlais, which continued to be exposed up to and during the hearing. The policies do not provide detailed procedures. The Applicant has not adopted an obvious measure that is likely to improve the accountability of educators and parents, that is, requiring payment of the gap fee to the provider and not to the educator."

Changes to National Construction Code

From today, the National Construction Code (NCC) 2019 Amendment 1 has been adopted. One of the changes is a new provision in Volume One, D1.18, regarding egress from early childhood centres. For more information see the Australian Building Codes Board website.

30 June 2020

Stay of Cancellation of Childcare Benefit Approval: Mohamed trading as Billan Family Day Care v Secretary, Department of Education, Skills & Employmen

In this case, before the Federal Court, the applicant family day care provider applied for a stay of the decision of the Department to cancel its provider approval under under section 195H, A New Tax System (Family Assistance) (Administration) Act 1999 (Cth). The applicant as well as applying for internal review by the Department of the decision also applied to the Court for judicial review of the cancellation. The Court rejected the applicant’s interlocutory application in so far as it sought a stay of the cancellation decision for a period of time to enable the internal review by of the decision to be completed by the Department. However, a stay of the cancellation of the decision was granted pending the judicial review (paras. 26-7):
In the present case, the applicant seeks a stay of the respondent’s cancellation decision pending a review of the decision. The effect of the stay is that the applicant will continue to hold an approval from the respondent, under s 195 of the Administration Act, to operate a Child Care Benefit Family Day Care Service. As such, individuals whose children are being provided with care at Billan Family Day Care will continue to be eligible for the applicable child care subsidies which will be paid to the applicant. In my view, it is appropriate to grant a stay of the cancellation decision on the condition that the applicant gives the usual undertaking as to damages. If the applicant is unsuccessful in this proceeding, it will have been paid child care subsidies by the Commonwealth which, but for the stay, it would not have been entitled to receive. While the subsidies are due to the individuals whose children are provided with care at Billan Family Day Care, the subsidies are paid to the applicant and the applicant charges its clients lower hourly rates for its services. In my view it is appropriate, as a condition of the stay, that if the applicant is ultimately unsuccessful on its application for review under the ADJR Act, the applicant undertake to repay to the respondent the child care subsidies received in the period from 28 June 2020.

29 June 2020

New South Australian Children's Services Legislation

The Education and Children’s Services Act 2019 passed the SA Parliament on 1 August 2019. The Act replaces the Education Act 1972 and the Children Service’s Act 1985 and will commence 1 July 2020. It provides a contemporary framework for delivering high-quality children’s services and compulsory education in South Australia. The Education and Children’s Services Regulations 2020 also commence on 1 July. Children's services includes preschool education and child care provided on a not for profit basis that is wholly or partly Government-funded (section 3). The legislation deals with mainly administrative matters. The Sector website published an article on the new legislation.

21 June 2020

Inadequate Supervision (Section 165, National Law)): CEO of Department of Communities and OSHClub

In two cases case heard by the West Australian State Administrative Tribunal (WASAT) last month orders were recently made which gave effect to the terms of settlement in relation to matters brought before the Tribunal by the WA Regulator (Department of Communities) for contravention of section 165(1), National Law, by approved provider, OSHClub.

The first case was CEO of Department of Communities and OSHClub Pty Ltd t/as Bicton OSHclub. The facts of the case are set out in the decision, and in particular the attached statement of agreed of facts. In summary, the action related to two incidents at the the approved provider's service at the Bicton Primary School at which it provides before and after school care. The first incident related to a 3 year old child who was not picked by the service from kindergarten and was left unsupervised for 10 minutes. The second incident related to another 3 year old child who went through a gap in the fence of the outside play area and entered the car park unsupervised where he was found 30 minutes later by the child's mother. The Tribunal ordered that the approved provider pay to the Department a penalty of $18,000, plus a contribution toward the Department's legal costs of $3000.

The second case was CEO of Department of Communities and OSHClub Pty Ltd t/as Treendale OSHClub. The facts of the case are set out in the decision, and in particular the attached statement of agreed of facts. In summary, the action related to incident at the approved provider's service at Treendale Primary School at which it provides before and after school care. A 4 year old child in the care of the service was found out by the road unaccompanied and upset by a parent and was brought back to the school. The child had been left unsupervised for about 10 minutes. The Tribunal ordered that the approved provider pay to the Department a penalty of $18,000, plus a contribution toward the Department's legal costs of $3000.

In Western Australia such matters as this are generally heard as disciplinary matters under the National Law (WA), see the article by David Oliver in The Sector that explains the process in detail.

17 June 2020

Now 15% Off: Australian Childcare Regulation Book

My book, Australian Childcare Regulation, is now 15% off with use of the code: FIFTEEN at checkout. More information at Lulu.com.