Refusal of Service Waiver: Brisbane City Child Care Pty Ltd v Dalton

This is a very interesting case heard by the Queensland Supreme Court in which the applicant (Brisbane City Child Care Pty Ltd) sought a review of the decision of the respondent (Queensland Department of Education and Training - the Regulatory Authority in Queensland under the National Law) to refuse to grant a service waiver. It is significant because it is an application for review of a decision by the Regulatory Authority outside the review provisions outlined in section 192 of the National Law. In fact the National Law does not provide for any review of a decision by the Regulatory Authority to refuse to grant a waiver. Instead, the application for review was made under the power of the Queensland Supreme Court to review administrative decisions on administrative law principles. It is likely that such reviews are available in other States and Territories depending on the applicable legislation.

The full facts are set out in the judgment. However, in brief, the applicant is an approved provider and operates a service (Brisbane City Child Care). It applied for a service waiver, under section 87, from the outdoor space requirements of regulation 108(2) in respect to "infants" only. It also sought to amend its service approval to allow it to care for more than 147 children the service was allowed to care for. The application was based on the reasoning that if at any one time only 60% of the total number of children were outside, then the outdoor space requirement for children could be reduced to 60% of the 7m2 which would otherwise apply (i.e. 4.2 m2). 

The Department refused to grant the service waiver and the approved provider sought administrative review by the Supreme Court under the provisions of the Judicial Review Act 1991 to get the decision set aside. The grounds on which it relied were:

• breach of the rules of natural justice
• failure to take into account relevant considerations
• taking into account irrelevant considerations
• making errors of law in the form of misconstruction of particular legislative provisions.

The Court found that one of the grounds had been made out by the approved provider:

I have found that the decision made by the respondent should be set aside with effect from the day it was made because of the respondent’s failure to comply with the requirements of procedural fairness (para. 73)

Specifically, the Court found that the natural justice hearing rule had been breached. The hearing rule requires that the "...party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and be informed of the nature and content of adverse material." (Court quoting Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd, at para. 38). Paragraphs 38-52 outline the specific breaches of the rule by the Department.

South Australia's Proposed Laws Banning Unvaccinated Children from Childcare

The South Australian Government is proposing introducing such laws along similar lines to that of Victoria and NSW and is seeking feedback until 31 August 2017. The Advertiser carried a story on the proposal.

NSW Liability for Child Abuse Legislation

The NSW Government has published a consultation paper proposing the introduction of legislation relating to the civil liability of organisations responsible for caring for children, in response to recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse. This appears similar to the legislation recently introduced in Victoria (see previous blog). The Daily Telegraph also published a story on this proposal.

Proposal to Lower School Age in Tasmania

The Mercury carried a story on the childcare sector opposing the changes.

Victorian Working With Children Act Changes

Further to my previous blog, the Department of Justice and Regulation has published additional resources explaining the changes which come into effect on 1 August 2017. That information can be accessed here.

Oz Family Day Care Closure

The Courier Mail recently carried a story on the cancellation of the Queensland service approval of Oz Family Day Care Pty Ltd, initially covered in my blog.

Inadequate Supervision (Section 165, National Law): CEO of the Department of Local Government and Communities, Mission Australia Early Learning

This is another case where the West Australian State Administrative Tribunal (WASAT) made an order which gave effect to the terms of settlement in relation to a matter brought before the tribunal by the WA Regulator under the National Law (Department of Local Government and Communities).

This case concerned contravention of of section 165, National Law, in that the approved provider failed to ensure that all children being educated and cared for by the service were adequately supervised at all times. In this case, a penalty of $9,500 and legal costs of $2,000, were imposed on the approved provider (Mission Australia Early Learning). The case concerned the approved provider's service at Warnbro. In October 2016, a five year old child with additional needs left the premises unnoticed and unaccompanied. A member of the public advised the service that a child had crossed a road and staff located the child. Further details of the circumstances and remedial action taken is detailed in the Statement of Agreed Facts attached to the decision.

Cancelation of Service Approval: Oz Family Day Care Pty Ltd v Department of Education and Training

This case was an application from the approved provider (Oz Family Day Care Pty Ltd) for a review of the decision of the Queensland Regulator under the National Law (Department of Education and Training) to cancel its Queensland service approval. It also holds a service approval in Victoria. The cancellation was originally stayed by the Tribunal.

The Department issued a show cause notice for cancellation under section 78(2), following a number of compliance visits and the issue of an emergency action notice (under section 179). Full details of the compliance history of the service is outlined in the decision. The service approval was cancelled by the Department in February 2017 under section 77.

The Tribunal looked at whether the grounds for cancellation had been made out:

Cancellation will only be a correct (lawful) decision if one or more of the grounds in s 77 are established. The only grounds relied on by the delegate [Department] were those in ss 77(a) and (d), concerning risk to children and non-compliance with conditions respectively (para. 32).

The Tribunal, in particular, looked at the elements that had to be established under section 77(a):

There are four elements to s 77(a):
a) a reasonable belief formed by the decision maker (speaking to the evidence relied on and the standard of proof, the civil standard, taking into account the seriousness and consequences of the decision);
b) that the continued operation of the service (being the focus on present and future operations);
c) presents an unacceptable risk (measured in accordance with standards stated in cases such as M v M and Fardon, contextualised appropriately for the National Law and its purposes);
d) to the safety, health or wellbeing of any child or class of children being educated and cared for by the education and care service.
The elements are to be considered in the context that the rights and best interests of the child are paramount. (paras.33-34)

The Tribunal extensively reviewed the evidence presented by both parties and decided to confirm the cancellation of the service approval:

The nub of the Applicant’s additional evidence took the form of assertions and assurances. In the face of the precise and voluminous evidence supporting the cancellation decision, it was always a hopeful approach rather than a persuasive one.
The evidence did not discharge the burden. Rather it tended to confirm that the continued operation of the service presented an unacceptable risk because of the systemic failings, and that Oz FDC continued to operate in breach of its statutory conditions.
In those circumstances, the conditions in s 77 for cancellation are met, enlivening the discretion to cancel. I would cancel the service approval because of the extent of the condition breaches alone. Further, the systemic failings shown in the cancellation notice findings and confirmed on the evidence (despite the improvements and changes) also warrant cancellation. Suspension as an
alternative is not appropriate because of the unacceptable risk and condition breaches (paras. 68-70).

 

Proposed Merger of Outside School Hours Care Operators

The media has extensively covered the proposed merger between Camp Australia and Junior Adventures Group which has now been referred to the ACCC. See the report on ABC Online and in the Financial Review.

Operation of Unapproved Education and Care Service: CZO v Secretary, Department of Education

In this case before the NSW Civil and Administrative Tribunal (NCAT), the Department (as the Regulatory Authority under the National Law) sought an order from NCAT prohibiting the approved provider (CZO) from continuing to operate a service for which service approval was cancelled. NCAT found it did not have authority to issue such an order, and therefore this resulted in the matter being heard by the Supreme Court in Secretary, Department of Education v Joys Child Care Ltd (see my previous blog on this case here).

Quensland Childcare Centre Sued for Burns Suffered by Child

The Gold Coast Bulletin carried a story about a parent suing her childcare centre after her child allegedly suffered burns.

Victorian Wrongs Amendment (Organisational Child Abuse) Act 2017

This legislation, which amends the Victorian Wrongs Act 1958, came into effect on 1 July 2017. It will have significant impact on child care services in relation to liability for any child abuse that occurs to children in their care. The legislation has been introduced in response to issues identified by the Family and Community Development Committee of the Victorian Parliament (Betrayal of Trust Report) and the Royal Commission into Institutional Responses to Child Sexual Abuse. 

The aim of the legislation is to make it easier for those subject of child abuse, by certain organisations, to sue those organisations for damages. As stated by the Attorney General in the second reading speech before Parliament:

As recommended by Betrayal of Trust, the bill amends the Wrongs Act 1958 to create a duty of care that will allow an organisation to be held liable in negligence for specified contexts of organisational child abuse committed by individuals associated with the organisation, unless the organisation proves that it took reasonable precautions to prevent the abuse.

Section 91(1) imposes the duty of care in negligence and section 91(2) outlines that duty:

A relevant organisation owes a duty to take the care that in all the circumstances of the case is reasonable to prevent the abuse of

a child by an individual associated with the relevant organisation while the child is under the care, supervision or authority of the relevant organisation.

"Relevant organisation" is defined in section 88 as an "...entity (other than the State) organised for some end, purpose or work that exercises care, supervision or authority over children...". There are however, a number of qualifications to this definition, depending on its structure.
"Abuse" is defined as physical or sexual abuse (s.88). The terms physical and sexual abuse are also defined, as is "authority". 
Section 90 outlines the circumstances in which an individual is regarded as associated with a relevant organisation. The definition is very broad and, amongst other things, includes employees, volunteers, contractors and in some circumstances, where care, supervision or authority has been delegated or contracted out to another organisation.

Interestingly, section 91(3) provides that where abuse is established and is linked to the organisation:

...the relevant organisation is presumed to have breached the duty of care...unless the relevant organisation proves on the balance of probabilities that it took reasonable precautions to prevent the abuse in question.

  Note

Reasonable precautions will vary depending on factors including but not limited to —

(a) the nature of the relevant organisation; and

(b) the resources that are reasonably available to the relevant organisation; and

(c) the relationship between the relevant organisation and the child; and

(d) whether the relevant organisation has delegated the care, supervision or authority over the child to another organisation; and

(e) the role in the organisation of the perpetrator of the abuse.

The legislation only applies to abuse that occurs on or after 1 July 2017 (s.93).

 

Family Day Care Compliance in NSW

The Daily Telegraph recently carried a story on the compliance activity by the NSW Regulator in relation to Family Day Care services under the National Law.

Inadequate Supervision (Section 165, National Law): Recent WASAT Decisions

Recently, the West Australian State Administrative Tribunal (WASAT) made a 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 by approved providers of s.165, National 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 Department of Local Government and Communities, the Catholic Education Commission of Western Australia Trustees Association Inc. (CECWATA), a penalty of $8,500 and legal costs of $1,500, were imposed on the approved provider (CECWATA). The case concerned CECWATA's service at Sacred Heart Primary School, Thornlie. In January 2017, a five year old child with ADHD left the service unnoticed and unsupervised and walked about 2.8 km to his aunt's residence. The child's absence was noted for about a 15 minute period. The full details are set out in the agreed facts in the case appended to the order.

The same approved provider was also involved in another matter before the Tribunal in which an $8,000 penalty and legal costs of $1,000 were imposed. That case concerned its service at St. Columba's Primary School, Bayswater. In this case, in February 2017, a six year old child left the service unnoticed and unsupervised through a gate that had a faulty self-locking mechanism around 5pm. A member of the public found the child 250m from the service at around 5.19pm and called the mother. The full circumstances are set out in the agreed facts in the case appended to the order. WA Today published a report of this case as well.

In CEO of the Department of Local Government and Communities, Horizons Childhood Learning Centres Pty Ltd the Tribunal imposed a $12,000 penalty and legal costs of $1,000. The case concerned the approved provider's service called Horizons Childhood Learning Centre South Fremantle OSHC and a five year old child leaving unsupervised and unaccompanied by an educator or any authorised adult. But no agreed facts are attached to the decision.

(Note: in WA rather than prosecute in a court (as is the case with other States and Territories) certain breaches of the National Law may be heard by WASAT as a disciplinary action under s.188B of the Schedule to the Education and Care Services National Law (WA) Act 2012)

Introduction of Reportable Conduct Schemes

A number of States have introduced reportable conduct schemes from 1 July and accordingly there has been extensive media coverage.

The Canberra Times carried a story on the problems with the ACT Scheme.

The Townsville Bulletin carried a story on the Queensland scheme. The Department of Education and Training has published information about the changes on its website.

Tasmanian Schools Age Changes & Impact on Childcare Sector

The proposed changes to the starting school age continues to get coverage in The Examiner.

Childcare Worker Criminal Trial in South Australia

The Advertiser carried coverage of the trial of a childcare worker for sexual offences.

Childcare Sector in Australia

The Urban Developer carried a story on the investment opportunities in childcare and another story on investment in new centres in Melbourne.

The Daily Telegraph carried a story on a proposed merger in the outside school hours care sector. The Sydney Morning Herald also covered the story and possible impacts on fees.

The Conversation also carried a story on the OECD's Starting Strong report, which included an overview of childcare in Australia, including comparison with other OECD countries.