BKE Pty Ltd v Department of Education and Training - Suspension of Service Approval

This case concerned an application to the Queensland Civil and Administrative Tribunal (QCAT) from the approved provider (BKE Pty Ltd) for a review of the decision of the Queensland Regulator under the National Law (Department of Education and Training) to suspend service approval for Busy Kids Cranbrook Kindergarten and Child Care Centre. The suspension was originally stayed by the Tribunal.

The Department issued a show cause notice for cancellation under section 78, following a number of breaches of the National Law and Regulations. Some of these breaches resulted in the issue of a show cause notice for suspension and a Compliance Direction. Full details of the compliance history of the service is outlined in the decision. After considering the approved provider's response to the show cause notice, the Department decided to suspend service approval for three months instead (see section 79). 

At the hearing, the approved provider admitted to the breaches but argued that "...where historical breaches notified by the Department had been remedied, or taken into account in the course of the Department previously reaching a decision not to cancel or suspend BKE’s service approval, they could not later be taken into account when again considering cancellation or suspension. Alternatively, BKE submitted that the breaches, if they could be taken into account, did not individually or collectively warrant suspension." (para.15). QCAT rejected the first argument saying that the decision maker in exercising its discretion to suspend or cancel can take into account past breaches:

The propensity of a service provider to not fulfil its obligations to maintain a safe environment for children would, in my view, be a relevant factor for the exercise of the discretion. It is also relevant in determining whether the threshold conditions for the exercise of the power are satisfied. That propensity may be revealed by a continuing failure to proactively comply, notwithstanding that a provider may have remedied breaches in a reactive way as they were brought to attention. (para.20).

The Tribunal then examined the breaches that had occurred to see if suspension was appropriate and concluded:

A decision to suspend a service approval involves: (1) determining whether the power is enlivened; and, if so, (2) deciding whether as a matter of discretion it should be exercised.
It is clear that if, as I have decided, it is appropriate to consider earlier breaches, the suspension power is enlivened by the acknowledged breaches of the National Law: s 70(e).
Taking into account matters outlined in the discussion below in relation to the exercise of the discretion, I would in any case also conclude that it would not be in the interests of children being educated and cared for by the service for the service to continue (s 70(a)). I would also conclude that the s 51(1) implied condition of the approval – the service being operated in a way that “ensures the safety, health and wellbeing of children being educated and cared for by the service” - has not been complied with (s 70(b)) (paras. 79-81).

One of the major reasons for QCAT in supporting the Department's decision to suspend was the number of previous and current breaches as well as the attitude of the approved provider:

Having regard to the further issues identified at the monitoring visit after the service recommenced operations and the recurring nature of the non-compliance, and notwithstanding Ms King’s long history in the industry, I cannot be satisfied that BKE is committed to ensuring compliance with the requirements of the National Law and Regulations. Bearing in mind the two show cause notices and various compliance directions and advice already issued to BKE, one might reasonably ask what else, short of suspension, the Department as the regulatory authority, and the Tribunal in its place on review, could reasonably do to ensure BKE’s compliance with its legal obligations? (para.97).