Inadequate Supervision (Section 165, National Law): Chief Executive Officer of the Department of Local Government and Communities and Camp Australia Pty Ltd

As mentioned in previous blogs, in Western Australia rather than prosecute in a court (as is the case with other States and Territories) certain breaches of the National Law may be heard instead by the WA State Administrative Tribunal (WASAT) as a disciplinary action under s.188B of the Schedule to the Education and Care Services National Law (WA) Act 2012). Normally, consent orders are agreed between the parties. However, in the following two cases, both involving Camp Australia Pty Ltd as the approved provider, the approved provider contested the proposed sanction sought to be imposed by the State Regulatory Authority (Department of Local Government and Communities). 

In Chief Executive Officer of the Department of Local Government and Communities and Camp Australia Pty Ltd [2017] WASAT 109, Camp Australia agreed it had breached section 165 but disputed the penalty sought to be imposed by the Department. The agreed facts of the case are set out in para.10 of the decision and related to the Coogee Primary School OSHC Service. Before the Tribunal, the Department sought the imposition of a fine as well as a supervision risk assessment be undertaken of all Camp Australia services in WA, in light of previous contraventions of s.165 by Camp Australia. Camp Australia agreed that a fine was appropriate but that the Tribunal had no power to order a supervision risk assessment. The Tribunal regarded the case before it as being in the lower order of seriousness in that the 5 year old left the service supervised, but did not leave the school grounds and the child was located after having been outside the supervision of the service between five and 10 minutes. However, a consideration in determining the penalty was also the prior contraventions by Camp Australia (paras 52-53):

There are some factual similarities between the current matter and the other three incidents (particularly that in each case the education and care service was operated by the same corporate entity and in each case a child was unsupervised to the extent that it was able to leave the premises). However, the applicant has not tendered evidence of any other commonality. There is no evidence tendered of commonality of staffing, contravention of procedures, failure of equipment, or otherwise. The applicant has not tendered evidence of any specific systemic issues, or any pattern of neglect or systemic disregard for rules, systemic problems with supervision or management, or any other factors common. In the absence of facts of this nature, the Tribunal does not accept, as maintained by the applicant, that the facts are sufficiently similar or linked in a way that suggests the respondent's contraventions are not isolated instances.
For these reasons, the Tribunal is satisfied (and so finds) that the respondent's other contraventions of s 165(1) of the National Law were isolated incidents. There is no basis on the evidence before the Tribunal to find that such contraventions negatively impact upon the respondent's worthiness or reliability to provide education and care services in the future. Accordingly, the Tribunal considers that the respondent's disciplinary history to be a matter of very limited weight in assessing an appropriate penalty. The Tribunal does not accept the applicant's submission that, in the present case, the contraventions significantly increase the objective seriousness of the respondent's contravening behaviour. The impact of the respondent's prior contraventions on the seriousness of the conduct in the present matter is nominal.

The Tribunal decided to impose a $7,000 fine and in relation to the supervision risk assessment it said the following (paras. 58-9, 66):

In a matter involving a finding that an education and care service contravened s 165(1) of the National Law by failing to ensure that all children were adequately supervised, it would be open to the Tribunal, upon being satisfied of the necessary facts, to order a person linked to a WA service to take certain actions, or refrain from taking certain actions, to comply with the law. Such actions might include, in appropriate circumstances, an order that the approved provider conduct an audit of the education and care service to ensure that its practices and procedures and the physical parameters of the service as they relate to supervision reflect the guiding principles of the national education and care services quality framework.
Such facts have not been established in the present matter, however. Although the respondent admits that it failed to ensure that a child was adequately supervised, the SAF [Statement of Agreed Facts] is silent as to how or why this occurred. The SAF is silent on why, as a matter of fact, a written supervision risk assessment is reasonably necessary to ensure the future safety, health and wellbeing of children attending the Coogee Service, particularly in light of the facts agreed at paragraph 2.10 of the SAF....
The Tribunal's view is that it is not fair or reasonable to impose orders requiring the respondent to take action to ensure compliance with s 165(1) of the National Law at any of its 87 services without evidence of some relationship between the action required and the contravention alleged or established.

In Chief Executive Officer of the Department of Local Government and Communities and Camp Australia Pty Ltd [2017] WASAT 111, Camp Australia agreed it had breached section 165 but disputed the penalty sought to be imposed by the Department. The agreed facts of the case are set out in para. 10 of the decision and related to the Jandakot Primary School OSHC Service. Similar arguments were made as in the Coogee service case (above). In fact both decisions were handed down by the same Tribunal member on the same day. In this case the Tribunal imposed a fine of $8,500 and costs of $6,027 and also regarded it as an isolated incident. For the same reasons given in the Coogee decision, the Tribunal did not think it appropriate to impose a supervision risk assessment of all Camp Australia Services.