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.