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.

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, 7^th 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.

News & Publications

Childcare Providers
The Gold Coast Bulletin carried a report on the financial situation of childcare provider G8.
The Commonwealth Government has recently published an updated determination in respect of child care services applying for Child Care Benefit:
Child Care Benefit (Eligibility of Child Care Services for Approval and Continued Approval) Determination 2000.

No Jab No Pay Vaccination Policy
The Herald Sun carried a report on Western Australia's intention to support the proposed national policy. ABC Online also covered the story.

Nannies
The Sydney Morning Herald recently covered the potential liability of parents hiring nannies or au pairs online.

News & Publications

Childcare Centre Supply
According to some industry research, an article in The Australian says that the industry is not in oversupply.

And an article in The Sydney Morning Herald suggests that investors are still keen on investing in child care centres.

NSW Approvals Process
The NSW Regulator (Department of Education) has published details of its process for provider and service approvals under the Education and Care Services National Law here.

In the News...

Service Standards
According to ACECQA, education and care service standards are on the rise, you can see the report here.

Childcare Centres Sales
The The Urban Developer reports on increased sales prices for childcare centres in Victoria. This suggests that there is profitability in the sector, at least for property owners.

No Jab No Pay Policy 
The Sydney Morning Herald recently had a story on the limitations of this vaccination policy.

New Publications

Changes to National Quality Framework
ACECQA have published additional resources in relation to the changes to the Education and Care Services National Law to be implemented from 1 October 2017, particularly changes to the National Quality Standard.
They have also released an occasional paper on National Quality Standard (NQS), Quality Area 3 – Physical environment.

Family Day Care Regulation
Family Day Care Australia (FDCA) commissioned the Social Policy Research Centre, University of New South Wales, to investigate the regulations, funding and quality assurance processes in NZ and the UK. This resulted in a report called Comparative perspectives on family day care: structure, regulation, and research gaps which compares the situation in Australia with those countries.
 
Child Protection 
Child Family Community Australia have recently published a resource for practitioners called Protection through participation: involving children in child-safe organisations. This paper outlines how those dealing with children can enable children and young people to understand, identify and raise their safety concerns.

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

This case is the latest in a string of recent cases in the Civil and Administrative Tribunal (NCAT) where the NSW regulator under the National Law (Department of Education) has cancelled 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)). This case too involves a family day care service who has had delays in gaining approval from the Commonwealth Department of Education and Training to become registered for Child Care Benefit (CCB). In this case the application had been ongoing for two years. You can read the full judgment here.

The approach taken in this case is somewhat different from that taken in the previous cases heard before NCAT (see previous blogs, and in particular CTG v, NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60, which appears to have similar facts. In the other three cases a six month extension was granted before the service approvals were cancelled). Some of the previous cases took the view that failure to obtain CCB approval did not negate the approved provider's responsibilities to comply with the National Law, i.e. the condition on service approval under s.51(3)). In this case the Department issued a show cause notice cancelling the service approval. The approved provider did not respond in the required time to the notice and so the Department cancelled the service approval. The approved provider took the matter to NCAT seeking the cancellation be set aside and a six month extension be given to its service approval in order for it to obtain CCB Approval. The Senior Member agreed with this and issued an order accordingly.

There are a few interesting points that come out of the judgment:

• The tribunal took the view that the six month time period in s.51(3) was arbitrary (para.60)
• There was nothing to indicate that the approved provider was not capable of running a service - 

"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 service approval to run a proposed Family Day Care Service is an indication that the applicant was considered capable of providing quality education and care services to children." (para. 59)

• The tribunal looked at the purposes of the legislation and concluded -

"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 (para. 58)....According to the applicant [CTZ], and this is not disputed by the respondent, the only difficulty preventing the commencement of the Family Day Care Service is the inability to obtain approval for Child Care Benefits under the family assistance law. Without that approval, parents of children will not receive Commonwealth fee assistance for sessions of care provided by the service. The role of parents is also to be respected and supported under the principles to be applied by the National Law. It is in the best interests of children to receive quality childcare and for their parents to receive fee assistance in order to obtain that quality childcare, if the service is eligible. This provides respect and support for the parents of the children. This is also a matter where it is considered in the best interests of children to have the opportunity to access quality and well regulated childcare." (para.61)

In the News...

According to an article in The Sydney Morning Herald the industry says there is an oversupply of childcare services in some areas and, surprisingly, is calling for greater regulation. 

An article in The Advertiser also referred to an oversupply in Adelaide and the increased competition in that market.