27 April 2017

In the News....

Chilldcare Funding
An article in The Daily Telegraph gave the results of a survey of parents conducted by Goodstart Early Learning.

In Tasmania funding of child and family centres is an issue according to a article in The Examiner.

Childcare Qualifications
An article in The Sydney Morning Herald recently looked at the issue of vocational training.

20 April 2017

New Publications

Protection of Children
A report prepared for the Royal Commission into Institutional Responses to Child Sexual Abuse called Oversight and Regulatory mechanisms aimed at protecting children from sexual abuse: understanding current evidence of efficacy has recently been published. It has been prepared by Professor Ben Mathews, Senior Research Fellow, Queensland University of Technology, as part of a general  research program to support the Royal Commission's work and to inform its findings and recommendations. The report examined the current oversight and regulatory mechanisms to protect children from child abuse. One of the areas it examined was the regulatory system that apples to early childhood education and care (Part 2.8, page 105ff). Although positive about the current regulatory scheme in place (see page 111) it identified the potential to implement measures to enhance the protection of children (page 17). Interestingly, the report identified some key differences between jurisdictions in regard to dealing with child abuse (at page 111):
  • "Only two jurisdictions (New South Wales and Western Australia) appear to require service providers ensure staff members are aware of their duty to report suspected child sexual abuse (Western Australia’s child protection law does not actually require reports, although it enables them). 
  • Only two jurisdictions (New South Wales (in part) and Queensland) appear to require service providers ensure staff are trained in child protection generally. Queensland’s legislative framework for training appears to be the most developed, at least nominally.
  • In five jurisdictions, childcare employees are required by the legislation to report suspected child sexual abuse (Australian Capital Territory, New South Wales, Northern Territory, South Australia and Tasmania); the other three (Queensland, Victoria and Western Australia) do not, although they enable reports to be made." 
Also, on 1 August 2017 a number of amendments to the Victorian Working with Children Act 2005 will come into effect. These changes implement recommendations from the Royal Commission's report: Working with Children Checks. Further details on the changes are available from the WWCC website. 

In addition, the NSW Office of the Children’s Guardian (OCG) has launched a free online learning tool to help staff and volunteers in all child-related organisations become child safe. More information can be accessed on their website. It has also published Principles for child-safe organisations for consultation.

An article in Evidence Base recently called Using behavioural insights for citizen compliance and cooperation, by Peter John (University College London) and Jane Robb (University of Greenwich), provides a review of the literature in relation to approaches to achieving compliance in compulsory (tax) and non-complusory (energy use) regimes. It has some lessons for regulators on achieving compliance in other regulatory areas. 

    17 April 2017

    Bright Horizons Australia Childcare P/L v Childcare Providers P/L - Dispute Regarding Operation of Childcare Services

    This is an interesting but complicated court case being heard before the Queensland Supreme Court. In this case Bright Horizons Australia Childcare Pty Ltd (Bright Horizons) sought injunctions up until trial restraining Child Care Providers Pty Ltd (CCP) from interfering with Bright Horizons’ possession of premises from which it runs childcare services in Ballarat and Wodonga, or interfering with the operation of the childcare businesses. Interim injunctions were granted by the court on those terms in March 2017. This case extended the injunction until the matter goes to trial when the case will be heard in detail and a final judgment made by the court. The full judgment was delivered on 7 April 2017 and can be read here.

    As I mentioned it is a very complicated case and you should read the full judgment to obtain an understanding of all of the issues involved. However, it basically involves a dispute between the two parties about which entity has rights to the premises and to operate the services. CCP currently has the approvals to operate the Ballarat and Wodonga services as the approved provider under the National Law. CCP argue, amongst a number of things, that it has a written lease with the landlord (which is a third party) and that Bright Horizons is only a licensee and they have revoked that licence for it to operate from the premises (which they were required to do to comply with the lease). Bright Horizons however contend that they have agreements with CCP to manage and purchase the services as well as being the equitable assignee of the lease. The outcome of the case is particularly important, in the National Law context, as service approvals are only valid for the specific premises stated on the approvals (see section 52(b))) and regulation 32 provides that it is a condition of service approval that the service continues to be entitled to occupy the education and care service premises.

    A side issue that is revealed in the judgment is that the services are reasonably profitable; in the financial year ending 2015, the Wodonga service made a profit of around $200,000 and the Ballarat service made a profit of around $475,000.

    15 April 2017

    In the News...

    Impact of Legislative Changes on Childcare 
    In Tasmania the government is proposing to lower the age that children can start school. The The Examiner recently carried a report on the impact this may have on the cost of childcare.

    While in NSW plans by the government to streamline planning processes for new childcare services has resulted in concerns being expressed by the industry body, the Australian Childcare Alliance, of an oversupply of childcare places in some areas, according to an ABC report.

    Children and Medication
    According to a report in The Daily Telegraph some childcare services are demanding that children with behavioural problems be medicated before they will enrol them. Apart from the issues raised in the article, if this is the case, it raises the issue of whether these services are in fact complying with the condition on their service approval requiring them to operate in a way that ensures the safety, health and wellbeing of the children (s.51(1)(a) of the National Law).

    10 April 2017

    CVM v NSW Department of Education, Early Childhood Education & Care Directorate & CVN v NSW Department of Education, Early Childhood Education & Care Directorate: Cancellation of Service Approval (breach of s.51 condition)

    The NSW regulator under the National Law (Department of Education) has been active recently in cancelling the service approvals of a number of services, under s.77(d) of the Education and Care Services National Law, who have failed to comply with the condition on the approval requiring them to commence ongoing operation within six months after the approval has been granted (s.51(3)). As a result a number of these have resulted in the approved provider seeking a review of the decision by the NSW Civil and Administrative Tribunal. All of these reviews involve Family Day Care services who appeared to be having problems gaining approval from the Commonwealth Department of Education and Training to become registered for Child Care Benefit (CCB). 

    Early this year two cases were heard and decisions handed down: CTG v. NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60; and CVT v. NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 74. On 5 April 2017 the Tribunal handed down two further findings in CVM v NSW Department of Education, Early Childhood Education & Care Directorate [2017] NSWCATAD 108, and CVN v NSW Department of Education, Early Childhood Education & Care Directorate [2017] NSWCATAD 109.

    There are some interesting points that arise from these two last cases:
    • The Tribunal supported the decision of the Regulatory Authority to cancel the service approval and this at least partly was based on consideration of the objectives of, and principles underlying, the National Law and the credibility and/or competence of the approved provider
    • The Tribunal made it clear that the delays in CCB approval did not negate the approved provider's responsibilities to comply with the National Law, in this case the condition on service approval under s.51(3)).
    • In both cases the Regulatory Authority conducted unscheduled visits of the service's principal office before finalising the cancellation of service approval and obtained evidence that indicated that the service was not operating even though the approved provider claimed they were.
    It should be noted that it appears to be the practice of the Tribunal in these cases to protect the identity of the approved providers and services involved, hence the names of the cases.

    8 April 2017

    In the News...

    Some recent items from the media relating to childcare regulation...

    Apparently an ongoing issue in childcare. The national regulator, ACECQA, has raised the issue of fraudulent qualifications with the Federal Government according to a story in the Daily Telegraph.

    Also an update on the trial of a family day care operator for fraud was published in The Border Mail recently.

    Profitability of Childcare
    It appears from a story in the The Sydney Morning Herald, concerning the upcoming sale of six childcare centres, there is profitability in the sector for some.

    4 April 2017

    In the News...

    Some interesting news items in the world of childcare regulation:
    Family Day Care Fraud
    On the ABC's 7.30 Report yesterday there was a story on the fraudulent activities of some NSW family day care services. ABC Online published a summary of the program with some of the documents obtained by the ABC through a freedom of information request.
    Wristbands for Children with Medical Conditions
    The Daily Telegraph recently published a story about the use of coloured wristbands to identify children with asthma, allergies or anaphylaxis in NSW childcare centres. The idea was the initiative of a Sydney company, CleverDux.