Recently, the West Australian State Administrative Tribunal (WASAT) made a further 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 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 Chief Executive Officer of the Department of Communities, Jane Hale, Jane Hale, a family day care educator with Nature Alliance Family Day Care Services, was found to have contravened s.165(3) of the National Law as the child was obtained burns to 7% of his body due to spiiling hot tea on himself. A fine of $6,500 was imposed on the educator for breach of s.165(3) and r.102(3). She was also required to pay $500 in costs to the Department.
In another case, Chief Executive Officer of the Department of Communities, Helping Hands Network Pty Ltd (not reported on the WASAT website) the approved provider was found to have contravened section 165(1) of the National Law in that a six year child with downs syndrome left
the service unnoticed and unsupervised and was found wandering on the
road about 100 metres from the service. The service was Helping Hands Rockingham Beach at Rockingham Beach Primary School. A
fine of $8,000 was imposed on the approved provider for breach of s.165. The approved provider was also required to pay $2,000 in costs to the Department. Further details can be found on the Department's web page and in a news report in the Kwinana Courier.
An inquest is currently being held by the Western Australian Coroner’s Court into the drowning of a child in a pool at a family day care service. The West Australian and ABC Online have carried reports.
This
is another NSW case where a family day care provider has sought review
by NSW Administrative and Civil Tribunal (NCAT) of the decision of the
NSW Regulatory Authority under the National Law (Department of
Education) to cancel its service approval for breach of condition.
The full decision can be found here. In May 2016, the applicant (the approved provider, Transcon Holding Pty Ltd) was granted service approval. In March 2017 the approved provider was issued with a show cause notice by the Department notifying them of the intention
to cancel the service approval on basis of failure to comply with the
conditions in section 51 of the National Law (namely, section 51(3) of the that requires a service to commence operation within 6 months of the grant of the service approval). The applicant had not commenced operating the service primarily because
the Child Care Benefit (CCB) payment approval had not been obtained from the Commonwealth Government. On 25 June 2017 the Commonwealth Department of Education and Training refused the applicant’s application for CCB approval. The applicant responded to the show cause notice and on 28 April 2017 the Department cancelled the service approval with effect from 12 May 2017 under section 79(1)(a)(i) of the National Law. The application for review was filed on 10 May 2017. A stay of the
effect of the decision to cancel the service approval was granted by
consent on 16 May 2017.
The case considered some of the legal principles underlying the Tribunal's function and determined that the "Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Secretary Department of Education..." (para.46). There were also considerations of whether what services the applicant was providing was a family day care service. However, considering all the facts the Tribunal upheld the decision of the Department:
The 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 also 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 provider and
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 Tribunal is not confined in its consideration of this matter to the reasons identified in the Reasons for Decision; Frugtnient v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257 at [45].
The
applicant has not complied with the provisions of the National Law and
in particular has failed to commence operations within 6 months of the
grant of the service approval. The Tribunal does not accept that the
applicant has commenced operations as required by the National Law
having regard to the definition of what constitutes an education and
care service. It is highly unlikely that the applicant will be able to
commence to provide the appropriate service without CCB approval. It is
clear from the evidence before the Tribunal that the applicant has been
refused that avenue of subsidised funding. There is in those
circumstances no persuasive reason to extend the period of time for
compliance. (para. 77-80)
The Age carried a story on the Victorian Government's plans to tighten the legal requirements in respect to vaccination exemptions for children attending childcare services.
The Courier Mail has carried a follow up report on the issue of the safety risks of high rise childcare centres which has national implications.
The Courier Mail recently had a story on the safety risks of Queensland high rise childcare centres.
