8 July 2017

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).


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