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.


 

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.

 

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.

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.

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.

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.

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.