Changes to West Australian Education and Care Services National Regulations

In November WA made some changes to its National Regulations through the Education and Care Services National Amendment Regulations 2017 (WA). Only a number of minor amendments were made. However, most of the changes made were those made to the Education and Care Services National Regulations in October and December 2017 by other jurisdictions (see previous posts).

Best Interests of Child: ZD v Secretary to the Department of Health and Human Services

This case concerned the rights of parents to not vaccinate their children. Although this case concerned a child protection matter, the Victorian Supreme Court made some interesting observations about the concept of "best interests of children" and its relationship with the Charter of Human Rights and Responsibilities Act 2006. 

One of the guiding principles of the National Law is that "...best interests of the child are paramount" (section 3(3)(a)). On the other hand, section 17(1), Victorian Charter of Human Rights and Responsibilities provides that "Families are the fundamental group unit of society and are entitled to be protected by society and the State." The court, in this cases, discussed the relationship between legislation promoting the best interests of children and the Charter.

Yahoo7 News also covered the case.

Changes to National Regulations: Education and Care Services National Further Amendment Regulations 2017

According to ACECQA, Education ministers agreed to further changes to the National Regulations that will come into effect on 31 December 2017 and 1 February 2018. The amendments extend some workforce transitional arrangements to 2020 and give effect to changes to the National Quality Standard. 

Some of the changes include:

Coming into effect on 31 December 2017:

• Changes to the details required to be kept in the Register of FDC educators, co-ordinators and educator assistants (regulation 7)
• Changes to the details required to be recorded in the Record of Staff Engaged or Employed by FDC service (regulation 8)
• Extension of staffing transitional arrangements under regulations 240, 242, 264, 300 (regulations 12-15)

 Coming into effect on 1 February 2018:

• Requirements for Significant Improvement Rating (regulation 5)
• Requirements for Excellent Rating (highest rating) (regulation 6)
• Transitional provisions for services assessed, reassessed or re-rated in the period surrounding the commencement of the new quality standards (regulation 16)
• New National Quality Standards (regulation 17) 
• Introduction of fees for applications for the Highest Rating (regulation 18)

Further information and a link to the Education and Care Services National Further Amendment Regulations 2017, can be accessed from the ACECQA website. 

Punishment & Discipline of Children - Requirements Under the Education and Care Services National Law

As you may be are aware I am in the process of writing a book on childcare regulation, specifically a guide to the National Scheme (Education and Care Services National Law and Regulations). I intend to publish this in February 2018. In the interim, I have been publishing draft extracts on this blog and would appreciate any feedback. I previously published a draft of the section on Supervision (see post) and in this post I am publishing the section on punishment and discipline of children:

Corporal Punishment

Section 166 prohibits children being subjected to corporal punishment:

• The approved provider (s.166(1)(a)), nominated supervisor (s.166(2)(a)), and staff member [1] or volunteer [2] (s.166(3)(a)) must ensure that no child being educated and cared for by the service is subjected to any form of corporal punishment
•  a FDC educator must not subject any child being educated and cared for by the educator as part of the service to any form of corporal punishment. (s.166(4)(a))

It is an offence to subject a child to corporal punishment with the penalty being up to $10,000 in the case of an individual, and $50,000 in any other case.

What is Corporal Punishment Under Section 166?

The National Law does not define what constitutes corporal punishment, but it has been defined as: [3]

Administration of physical pain in order to (1) make a wrongdoer suffer for the wrong, and (2) attempt to change future behaviour by the wrongdoer and others…

In the context of children, according to Child Family Community Australia: [4]

Corporal punishment is defined as the use of physical force towards a child for the purpose of control and/or correction, and as a disciplinary penalty inflicted on the body with the intention of causing some degree of pain or discomfort, however mild. Punishment of this nature is referred to in several ways, for example: hitting, smacking, spanking, and belting (Cashmore & de Haas, 1995). Although most forms of corporal punishment involve hitting children with a hand or an implement (such as a belt or wooden spoon), other forms of corporal punishment include: kicking, shaking, biting and forcing a child to stay in uncomfortable positions (United Nations Committee on the Rights of the Child, 2006). The desired outcome of physical punishment is child compliance with adult directives (Gawlik, Henning, & Warner, 2002; Smith, Gollop, Taylor, & Marshall, 2004).

 Discipline of Children

Section 166 also prohibits children being subjected to any discipline that is unreasonable in the circumstances:

• the approved provider (s.166(1)(b), nominated supervisor (s.166(2)(b)), and staff member  [5] or volunteer  [6] (s.166(3)(b)) must ensure that no child being educated and cared for by the service is subjected to any discipline that is unreasonable in the circumstances.
• a FDC educator must not subject any child being educated and cared for by the educator as part of the service to any discipline that is unreasonable in the circumstances. (s.166(4)(b)

It is an offence to subject a child to any discipline that is unreasonable in the circumstances with the penalty being up to $10,000 in the case of an individual, and $50,000 in any other case.

What is Discipline Under s.166?

This term is not defined in the National Law. However, reference to discipline in this context seems to refer to punishment outside of corporal punishment, i.e. beyond physical punishment (see definition above). According to a Victorian Department of Education and Training practice note in respect to s.28 of the Children’s Services Act, which is in the same terms as s.166: [7]

‘Discipline’, in the way the term is used in the Victorian Act, can be defined as something that adults do to children to punish them in order to enforce obedience.

Section 166 appears to prohibit punishment (other than corporal punishment) aimed at enforcing obedience of the child that is unreasonable in the circumstances. The National Law does not prohibit the punishment of children for the purpose of discipline. However, it does prohibit discipline that is unreasonable. Whether the discipline was reasonable or not will depend on the individual circumstances of each case. This brings in concepts of proportionality: was the nature and type of discipline given appropriate given the general circumstances, including the child’s behaviour? This involves looking at the situation from the point of view of a reasonable person in the situation of the person who used the discipline. It appears that the concept is similar to that applied in Tort Law: "that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances". [8]

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[1] See s.5(1) for definition of staff member.

[2] See s.5(1)) for definition of volunteer.

[3] Australian Law Dictionary, 2^nd ed., Oxford University Press, South Melbourne, 2015.

[4] Corporal punishment: Key issues, CFCA Resource Sheet— March 2014 (https://aifs.gov.au/cfca/publications/corporal-punishment-key-issues, accessed 1 April 2016).

[5] See s.5(1) for definition of staff member

[6] See s.5(1) for definition of volunteer.

[7] http://www.education.vic.gov.au/Documents/childhood/providers/regulation/pracnotesdiscipline-12-05-2015.docx, accessed 1 April 2016.

[8] Riverman v Orchards Pty Ltd v Hayden [2017] 379, para.199.

New Vaccination Requirements in NSW

From 1 January 2018, amendments to the Public Health Act 2010 will require children who have not been immunised due to their parent’s vaccine conscientious objection to be be vaccinated in order to attend childcare services.

For further information, see the Department of Education website.

NSW Guidelines for Preschool Children in Outside School Hours Care

The NSW Regulator under the National Law (the Department of Education) has published a new Guideline for supporting preschool age children in Outside School Hours Care, in response to increased requests for information.

Recent WASAT Cases

In November, the West Australian State Administrative Tribunal (WASAT) made a number of orders in relation to matters brought before the tribunal by the WA Regulator (Department of Communities) for contraventions of the National Law.

In Department of Communities, Lady Bug Holdings Pty Ltd, the approved provider (Lady Bug Holdings) was found to have contravened section 177(3) for failing to comply with the terms of a compliance notice issued on 28 September  2016. The compliance notice related to the Melville Day Care Centre, in Melville, and required compliance by 16 March 2017, in respect to a number of matters relating to section 167 and regulations 103-4 (see the Department of Communities website for details of the compliance notice).
The Tribunal ordered the approved provider pay a fine of $2,000 and pay $3,000 towards the Department's legal costs.

In Department of Communities, Embracing Children Karratha Pty Ltd, the approved provider (Embracing Children Karatha) was found to have contravened section 165(1) by failing to ensure adequate supervision of children in its care. The facts of the case were that an educator from the service, Stripy Zebra's Junior Education Centre, driving a bus collected seven children from various schools to transport them to the service. The bus arrived at the service at about 2.52pm and six children entered the service. The nominated supervisor signed in seven children. At 3.24pm a parent walking past the service noticed a child about 5 years old strapped into a seat in the bus. It was a 30 degree day. 
The Tribunal ordered that the approved provider pay a fine of $13,500 and pay the Department $2,500 towards its legal costs.

Regulation and Provision of Outside Schools Hours Care

An opinion piece in the Brisbane Times detailed some issues with the provision of outside school hours care.

Royal Commission into Institutional Responses to Child Sexual Abuse Final Report

The Royal Commission into Institutional Responses to Child Sexual Abuse in its final report handed down on 15 December, made the following recommendations that specifically relate to childcare: 

• Recommendation 6.9 - Legislative requirements to comply with the Child Safe Standards should cover institutions that provide childcare or childminding services.

• Recommendation 7.12 - Reportable conduct schemes should cover institutions that provide childcare services. 

In addition, the Commission made a number of previous recommendations regarding working with children checks and other matters relevant to childcare services.

The full text of all the recommendations can be found here.