10 December 2017

Nutrition and Childcare Services

A report in the Sunday Herald Sun covered the introduction of a Commonwealth Government initiative to improve the nutrition of food provided to children at childcare services. 

The report does not appear to be aware that there is a requirement to provide nutritious food under the National Regulations. Regulation 79 provides:
(1)  The approved provider of an education and care service that provides food or a beverage to children being educated and cared for by the service must ensure that—
(a)  the food or beverage provided is nutritious and adequate in quantity; and
(b)  the food or beverage provided is chosen having regard to the dietary requirements of individual children taking into account—
(i)  each child’s growth and development needs; and
(ii)  any specific cultural, religious or health requirements.
Penalty: $2000.
(2)  A nominated supervisor of an education and care service that provides food or a beverage to children being educated and cared for by the service must ensure that—
(a)  the food or beverage provided is nutritious and adequate in quantity; and
(b)  the food or beverage provided is chosen having regard to the dietary requirements of individual children taking into account—
(i)  each child’s growth and development needs; and
(ii)  any specific cultural, religious or health requirements.
Penalty: $2000.
(3)  A family day care educator who provides food or a beverage to children being educated and cared for by the educator as part of a family day care service must ensure that—
(a)  the food or beverage provided is nutritious and adequate in quantity; and
(b)  the food or beverage provided is chosen having regard to the dietary requirements of individual children taking into account—
(i)  each child’s growth and development needs; and
(ii)  any specific cultural, religious or health requirements.
Penalty: $2000.
(4)  To avoid doubt, this regulation does not apply to food or a beverage provided by a parent or family member for consumption by the child.

5 December 2017

Inadequate Supervision (Section 165, National Law) & Protection from Harm & Hazards (Section 167): Chief Executive Officer of the Department of Communities, Fremantle Early Learning Centre Inc

In a recent case before the West Australian State Administrative Tribunal an order was made which gave effect to the terms of settlement in relation to a matter brought before the tribunal by the WA Regulator (Department of Communities) for contraventions of sections 165 and 167 of the National Law. The facts of the case are set out in the report of the case, and in particular the attached agreed set of facts. In summary, a 3 year old child at the service, unnoticed, placed his head through the cords of a hammock (recently installed at the service) hanging himself with his feet off the ground for over 5 minutes before being freed by an educator.

A penalty of $4,000 was imposed on the approved provider with a further $2,000 to be paid to the Department for legal costs.

WA Today also reported the case.

National Statement of Principles for Child Safe Organisations

The Commonwealth Government commissioned the Australian Human Rights Commission to prepare draft National Principles for Child Safe Organisations. The draft was endorsed by Commonwealth, State and Territory Community Service Ministers in October 2017. In order to obtain broader input into the draft principles from all sectors working with children and young people, before finalising the National Principles, a consultation draft has been prepared. The final draft National Principles will be submitted to the Council of Australian Governments (COAG) for endorsement and implementation across all sectors providing services to children.

Criminal Court Case Involving St Andrews Children’s Neighbourhood Centre

Nine News carried a report of a matter being heard before Campbelltown Local Court, in NSW, relating to criminal charges brought against some persons involved in the St Andrews Children’s Neighbourhood Centre.

Costs of Childcare & Regulation

The Daily Telegraph recently carried a story on the costs of childcare and regulation.

21 November 2017

Inadequate Supervision (Section 165, National Law): Recent West Australian Cases

Recently, the West Australian State Administrative Tribunal (WASAT) made a further 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 of s.165National 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 Chief Executive Officer of the Department of Communities, Jane Hale, Jane Hale, a family day care educator with Nature Alliance Family Day Care Services, was found to have contravened s.165(3) of the National Law as the child was obtained burns to 7% of his body due to spiiling hot tea on himself. A fine of $6,500 was imposed on the educator for breach of s.165(3) and r.102(3). She was also required to pay $500 in costs to the Department.

In another case, Chief Executive Officer of the Department of Communities, Helping Hands Network Pty Ltd (not reported on the WASAT website) the approved provider was found to have contravened section 165(1) of the National Law in that a six year child with downs syndrome left the service unnoticed and unsupervised and was found wandering on the road about 100 metres from the service. The service was Helping Hands Rockingham Beach at Rockingham Beach Primary School. A fine of $8,000 was imposed on the approved provider for breach of s.165. The approved provider was also required to pay $2,000 in costs to the Department. Further details can be found on the Department's web page and in a news report in the Kwinana Courier.







Coronial Inquiry into Drowning of Child at WA Family Day Care Service

An inquest is currently being held by the Western Australian Coroner’s Court into the drowning of a child in a pool at a family day care service. The West Australian and ABC Online have carried reports.

17 November 2017

Cancellation of Service Approval (Breach of Condition): Transcon Holding Pty Ltd t/as Sydney Multicultural Child Care Services 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 May 2016, the applicant (the approved provider, Transcon Holding Pty Ltd) was granted service approval. In March 2017 the approved provider was issued with a show cause notice by the Department notifying them of the intention to cancel the service approval on basis of failure to comply with the conditions in section 51 of the National Law (namely, section 51(3) of the that requires a service to commence operation within 6 months of the grant of the service approval). The applicant had not commenced operating the service primarily because the Child Care Benefit (CCB) payment approval had not been obtained from the Commonwealth Government. On 25 June 2017 the Commonwealth Department of Education and Training refused the applicant’s application for CCB approval. The applicant responded to the show cause notice and on 28 April 2017 the Department cancelled the service approval with effect from 12 May 2017 under section 79(1)(a)(i) of the National Law. The application for review was filed on 10 May 2017. A stay of the effect of the decision to cancel the service approval was granted by consent on 16 May 2017.

The case considered some of the legal principles underlying the Tribunal's function and determined that the "Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Secretary Department of Education..." (para.46). There were also considerations of whether what services the applicant was providing was a family day care service. However, considering all the facts the Tribunal upheld the decision of the Department:
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.
The Tribunal is not confined in its consideration of this matter to the reasons identified in the Reasons for Decision; Frugtnient v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 at [45].
The applicant has not complied with the provisions of the National Law and in particular has failed to commence operations within 6 months of the grant of the service approval. The Tribunal does not accept that the applicant has commenced operations as required by the National Law having regard to the definition of what constitutes an education and care service. It is highly unlikely that the applicant will be able to commence to provide the appropriate service without CCB approval. It is clear from the evidence before the Tribunal that the applicant has been refused that avenue of subsidised funding. There is in those circumstances no persuasive reason to extend the period of time for compliance. (para. 77-80)

16 November 2017

Victoria to Toughen No Jab No Play Legislation

The Age carried a story on the Victorian Government's plans to tighten the legal requirements in respect to vaccination exemptions for children attending childcare services.

5 November 2017

More on the Safety Risks of Queensland High Rise Childcare Services

The Courier Mail has carried a follow up report on the issue of the safety risks of high rise childcare centres which has national implications.

30 October 2017

ACT Childcare Provider Compliance

The Canberra Times recently carried a report on Canberra childcare services' compliance with the National Law and Regulations.