Victoria's Reportable Conduct Scheme

From 1 January 2019, Victoria's Reportable Conduct Scheme will be extended to all Education and Care Services and Children's Services.

Under the Child Wellbeing and Safety Act 2005, services have a number of obligations in relation to responding to child abuse, including reporting "reportable" conduct" to the Commission for Children and Young People. There is an allegation of 'reportable conduct' where a person has a reasonable belief that there has been:

• a sexual offence (even prior to criminal proceedings commencing)
• sexual misconduct.
• physical violence committed against, with or in the presence of a child.
• behaviour causing significant emotional or psychological harm.
• significant neglect of a child.
• misconduct involving any of the above. 

For more information on the obligations of organisations under the Scheme, see the Commission for Children and Young People website, or the Department of Education and Training website.

ACECQA Publishes 2018 Annual Performance Report

ACECQA's 2018 Annual Performance Report has just been published and it provides analysis against the objectives and outcomes of the National Quality Agenda for Early Childhood Education and Care, arranged into seven chapters:

• Safety, health and wellbeing of children attending education and care services
• Educational and developmental outcomes for children
• Social inclusion and children from vulnerable and disadvantaged backgrounds
• Families’ and general public knowledge and access to information about education and care service quality
• Efficiency and cost effectiveness of the regulation of education and care services
• Regulatory burden for education and care service providers
• Skilled education and care workforce.

Cancellation of Childcare Benefit Approval: Alekdit Pty Ltd (trading as Giggling Day Care Centre) and Secretary, Department of Education and Training

This case before the Administrative Appeals Tribunal concerned an application by Alekdit Pty Ltd trading as Giggling Day Care Centre (“the Applicant”), for a review of the decision of the Commonwealth Department of Education and Training (the "Respondent") to cancel the approval of the Applicant under family assistance law for the receipt of Child Care Benefit allowance. Before the Tribunal, the Applicant was represented by Mr Awan Bol, the director of the applicant company.

In November 2017, the Education Standards Board (the South Australian Regulator under the National Law) cancelled the provider approval of the Applicant. The Applicant did not seek a review of that decision. The Tribunal observed that:

The Commonwealth approval regime is not responsible for the grant of licence, but is part of the criteria for a parent's eligibility for Commonwealth child care fee assistance. As at the time of the internal review process, a condition of a payment of that assistance is that the Child Care Centre be registered, and pursuant to section 196(3) of A New Tax System (Family Assistance)(Administration) Act 1999 (“the Administration Act”), it must be compliant with all applicable requirements imposed by a law of the State in which the service operates. Hence if a Child Care Centre's registration is cancelled, it ceases to comply with State law and it follows that they are no longer eligible for payment of Child Care Benefit from the Commonwealth and such payment will consequently be cancelled pursuant to section 200(1)(e) of the Administration Act. (para.9)

The Tribunal dismissed the Applicant's application for review commenting that:

...it was apparent, that from the material before the Tribunal, the applicant had not pursued any challenge to the cancellation of its registration as a Day Care Centre. Therefore at the commencement of the hearing the applicant was invited to open his case and identify the issues for the consideration of the Tribunal, together with the evidence and the witnesses he wished to call.
It was immediately apparent that the applicant did not have a clear understanding of the legislative framework under which both State and Commonwealth bodies operate and the separate roles, responsibilities and functions of each. Nor did he have an understanding of the different jurisdictions of the State and Commonwealth in appealing their respective decisions within the legislative framework. The Tribunal explained repeatedly the separate roles of each and their respective jurisdictions.
During those submissions Mr Hertzberg [representing the Department] explained that the respondent had previously sought to clarify the separation of the jurisdictions with the applicant, and had sent to him the necessary paperwork to pursue an application in the District Court to review the decision to cancel Giggling Day Care Centre's registration, and advised the applicant that the respondent would not oppose an application for extension of time within which to bring the application, and indeed supports such an application for extension of time on the basis that the applicant had misunderstood the process and appealed in the wrong jurisdiction for the remedy he sought.
When asked by the Tribunal why the applicant had not accepted the invitation of the respondent, he said he did not want to proceed in the State courts and regarded the Commonwealth as responsible for the cancellation of Giggling Day Care Centre's registration. He wanted the Commonwealth, and now the Tribunal, to decide the issue of the cancellation of the registration. When asked if successful what orders the applicant was inviting the Tribunal to make, and he responded “reregistration of Giggling Day Care Centre's licence.”
It was clear that the applicant's application before the Tribunal was not directed to the decision of 19 December 2017 and the ARO’s decision of 22 February 2018 confirming cancellation of the child care assistance. The application, it was plain, was directed to seeking orders reinstating Giggling Day Care Centre's registration which was not within the jurisdiction of the Tribunal. The applicant maintained that the Commonwealth was responsible for the cancellation. He would not pursue the issue before the State courts and he would pursue the matter by appeal before the Federal Court if unsuccessful....
The respondent indicated that the respondent had made those responsible from ESB for the inspection of the applicant's places of work to give evidence and be cross-examined in these proceedings. But the question remained to what end. The Tribunal was not prepared to have witnesses placed through the ordeal of giving evidence and be cross-examined about allegations of discrimination, racism and misconduct when those allegations had no bearing on whether the decision to cancel the Commonwealth approval under family assistance law in respect of Giggling Day Care Centre was the correct or preferable decision....
At no time did the applicant raise, as an issue for the Tribunal, any relevant complaint or demonstrate any error by the respondent in the cancellation of family care assistance.
In those circumstances the Tribunal finds that the application is vexatious, wholly misconceived and lacking in substance and has no reasonable prospect of success, and is otherwise an abuse of the process of the Tribunal.
The Tribunal orders, pursuant to section 42B(1) of the Act, that the application is dismissed. (paras.23-27, 29, 31-33)

Impacts of Government 'No Jab, No Play' Policies

ABC's 7.30 Report broadcast a story yesterday on the impact of the policy on some childcare services.

Cancellation of Childcare Benefit Approval: Koala Family Day Care Pty Ltd and Secretary, Department of Education

This case involved the Administrative Appeals Tribunal considering an application by Koala Family Day Care Pty Ltd (the Applicant) seeking review of a decision of the Commonwealth Department of Education (the Respondent) cancelling the Applicant’s service approval (as a childcare service for the purposes of the family assistance law) under section 200(1)(e), A New Tax System (Family Assistance) (Administration) Act 1999.

The Department cancelled the approval on a number of grounds:

• Inacccurate attendance records resulting in overpayments of childcare fee assistance.
• Breaches relating to the suitability of the service, which involved - child swapping; falsely claiming for 24 hour care; claims while educators and children overseas; reporting absences after the service had permanently ceased providing care to children; late enrolment and attendance reports; and more than seven children in care of educators.
• Breaches of the Education and Care Services National Law. 

 The Tribunal affirmed the decision of the Department, stating that:

...the Tribunal accepts that the serious and repetitive nature of the breaches justify the sanction that the Respondent regulator has imposed.
The matters referred to above are repeated. Also it is recorded that there have been 2420 sessions of care identified as being incorrect. This is resulted in an overpayment of $88,777.61. There have been over 1,608 sessions of care where either the educator or the child was overseas such that the contravention involved providing false or misleading or otherwise inaccurate information. This resulted in Child Care Benefit and Child Care Rebate payments being made of $40,987.94. They are serious infractions of the conditions for which the Respondent was obliged to act. The sanction of cancellation was fully justified (paras.87-8).

 

Review of National Quality Framework Announced

The Education Council, of the Council of Australian Governments, announced the review in a communique:

The 2019 Review will consider a number of issues impacting the early childhood education and care sector including recommendations arising from the Royal Commission into Institutional Responses to Child Sexual Abuse as they relate to the NQF and services regulated under the NQF and recommendations arising from Education Council’s Family Day Care program of work.

The NQF Review will commence immediately, with national consultation to begin early in 2019.  Ministers will be regularly updated by officials at each stage of the review.

The Sector website have also published an article on the outcomes of the Education Council meeting.

Further Commonwealth Action Regarding Family Day Care Child Care Benefit Fraud

The Minister for Education today published a media release in which it is stated that the Commonwealth Government "...will target rorters and fraudsters in a further crackdown to protect Australia’s Family Day Care system. The Government has committed an extra $52.2 million over 2018-19 to 2021-22 to tackle fraud and non-compliance issues in the sector."

Commonwealth Sanctions In Relation to Childcare Benefit Provider Approvals

The Sector website recently published a story on the latest sanctions against services published by the Department of Education and Training in relation to childcare benefit approvals. 

The Child Care Enforcement Action Register can be accessed from the Department's website.

New Child Vaccination Laws to be Introduced in Western Australia

According to a report on ABC News Online, from 1 January 2019, kindergartens, schools and childcare centres will be required to collect and report on the immunisation status of children in their care. The information will be made available to the Health Department so it can identify children whose vaccines are not up-to-date and order that they stay home if there is a disease outbreak at their school or childcare centre. 

These provisions are contained in the Public Health Amendment Regulations 2018 (note, "school" includes childcare services as defined in section 4, Public Health Act 2016).

The Sector website, and WAtoday also carried reports on the new legislation.

Commonwealth Government Action Against Childcare Benefit Fraud

The Australian recently published a story on this issue. The story follows a media release issued by the Minister for Education today.

The Importance of Publishing Enforcement Actions Under the National Law

You can read my just published article on this subject on The Sector website.

Cancellation of Registration of Childcare Registered Training Organisations

The Sector website recently published a story about two Registered Training Organisations, delivering qualifications in early childhood education and care, who have had their registrations cancelled by the Australian Skills Quality Authority.

Food Allergy and Anaphylaxis Management Resources

ACECQA have published information on available resources related to allergy management. 

The Perth Now website also published an article recently on the growing issue of children needing medical treatment for allergy reactions.

Publication of Enforcement Action Taken Under National Law

Under section 270(5), National Law, State/Territory Regulatory Authorities may publish information about enforcement action taken against approved providers, services, nominated supervisors and family day care educators, relating to breaches of the National Law and Regulations. 

Enforcement action ranges from compliance notices to prosecutions (see Australian Childcare Regulation, pp.101-103, for further details).

However, such information can be difficult to find on the various State/Territory Regulatory Authority websites, so I have compiled the list of direct links below. Just click on the State to be taken directly to the relevant part of the website (it does not appear that any of the Territories publish this information):

• NSW
• Queensland
• South Australia
• Tasmania
• Victoria
• Western Australia

Victorian County Court Child Care Benefit Fraud Case

The Commonwealth Minister of Education recently released a media release in relation to a Family Day Care fraud case in which a person was sentenced to prison by the County Court.

Refusal of Working with Children Check: DER v NSW Children’s Guardian

In a case heard by the NSW Civil and Administrative Tribunal, the applicant (DER) sought review of a decision by the Office of the Children's Guardian (respondent) refusing him a Working with Children Check clearance (WWCC). The Children's Guardian formed the view that DER posed a real and appreciable risk to the safety of children and young persons. DER sought a review in order to obtain a WWCC under the Child Protection (Working with Children) Act 2012 (NSW), due to his lifelong ambition to qualify and work in the area of childcare. 

The Tribunal agreed with the Children's Guardian that DER did pose a risk to children:

Having regard to the applicant's psychological functioning, we form a view that it has a significant impact on his ability to be protective of children, thereby creating a real and appreciable risk to the safety and well-being of children. It would follow that as such he would be a risk to children whilst engaged in unsupervised child related work.
Having regard to the applicant's physical constraints on his functioning, his visual impairment which also understandably impacts on his physical mobility, his level of psychological damage and consequent level of functioning, and noting his desire to be protective of children, we reach the following conclusion. We find from a consideration of all of the evidence that the applicant's current level of impairment is such that it has a significant impact on his ability to be protective of children and as such he would be a risk to children whilst engaged in unsupervised child related work (paras. 74-75).

High Surface Temperatures Found in Childcare Outdoor Play Spaces

New research by Western Sydney University has found dangerously high surface temperatures in outdoor play spaces, raising important questions about children’s safety and learning outcomes.

The Sydney Morning Herald also published an article on the research.

Refusal to Grant Provider Approval (Section 12): DPW v Secretary, Department of Education

This is the latest case in a series of cases heard by the NSW Civil and Administrative Tribunal in which it has assessed the legality of the practice by the NSW Regulatory Authority (Department of Education)of requiring applicants for provider approval, under the Education and Care Services National Law, to undertake tests to assess their fitness and propriety to be approved providers (a practice which has been modified, see para.49 of the judgment). See my previous blog post.

In this case the applicant, DPW, applied for provider approval to operate an education and care service. To determine whether he was a fit and proper person to do so (under section 13), the Department required him to undergo an assessment. In this assessment, the applicant was asked to solve legal problems raised in two scenarios set in a family day care setting. The applicant’s results were assessed as inadequate by the Department and he was refused provider approval. In this case the applicant sought a review of this decision.

The Tribunal in this case, in summary, found:

In making my decision, I considered whether the Department of Education ever had the power to require the applicant to undergo an initial assessment and, if not, whether I should nevertheless consider the results of this mandatory assessment to determine whether the applicant is a fit and proper person to operate a daycare centre.
Whilst I am not satisfied that the Department of Education had the power to require the applicant to undergo the initial assessment and that this information was consequently improperly obtained, I have used my discretion to admit these results. This is because the public interest in upholding the rights and best interests of the child outweighs the public policy in protecting the applicant from unlawful and improper conduct. Taking into account these initial assessment results, in combination with a later assessment result voluntarily undertaken by the applicant, I am not satisfied that he is a fit and proper person to be granted provider approval to operate an education and care service. (paras.2-3).

The Tribunal also made some helpful observations on the scope of fitness and propriety under section 13:

I accept that the assessment results are relevant to a determination of the proceedings. This is because a knowledge and understanding of the National Law and National Regulations is part of what would make an applicant a fit and proper person to be involved in the provision of an education and care service within s14(2)(a) of the National Law.
“Fitness” has three components, one of which is knowledge: Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156-157.
The objectives of the national education and care services quality framework, which is established by the National Law, include ‘to ensure the safety, health and wellbeing of children attending education and care services,’ ‘to improve the educational and developmental outcomes for children attending education and care services’ and ‘to promote continuous improvement in the provision of quality education and care services’ (National Law, s 3(1) and (2)(a) to (c)).
I am satisfied that these objectives would be promoted by a knowledge and understanding of the National Law and National Regulations.
The guiding principles of the National Law include the principle ‘that the rights and best interests of the child are paramount’ and the principle ‘that best practice is expected in the provision of education and care services’ (National Law, s 3(3)(a) and (f)).
I agree with the observations of Senior Member Anderson in CTZ v NSW Department of Education, Early Childhood Education and Care Directorate [2017] NSWCATAD 132 at [56] that the Tribunal is required to regard the rights and best interests of the child as paramount in making a determination as to the correct and preferable decision.
The public policy in admitting the evidence of the applicant’s assessment is that it would promote the objectives and the guiding principles of the National Law, including by helping to ensure the safety, health and wellbeing of children attending education and care services. (section 3(2)(a)).(paras.40-46)

Cancellation of Child Care Benefit Approval: Kids Vision Family Day Care Pty Ltd and Secretary, Department of Education and Training

In this case, heard by the Administrative Appeals Tribunal of Australia, Kids Vision (the applicant) applied for a review of the merits of a decision of the Secretary of the Department of Education and Training dated 18 August 2017. The reviewable decision affirmed an earlier decision dated 15 May 2017 made under section 200(1)(e), A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) to cancel the approval of the applicant as an operator of an approved child care service.

The Department decided to cancel Kids Vision approval as it identified 3,204 sessions of care reported by the service which attributed the provision of care to particular educators, for dates when those educators were overseas (since 1 January 2015). The Department’s review, also identified 765 sessions of care reported by the service since 1 January 2015 for children who were in fact overseas. The service argued that it had a system of relief educators when these educators were overseas.
 
The Tribunal considered whether the sanction of cancellation was appropriate and concluded:

In terms of the seriousness of the breaches, the Tribunal finds that the breaches by Kids Vision were at the higher end of a scale of seriousness. Whether the ‘relief educator’ system was set up under an honest misunderstanding is, to the Tribunal, a highly dubious conclusion to draw. But the fact that it continued for such lengthy period weighs in favour of a heavy sanction. Most importantly to the Tribunal, the fact that when Mr Worres realised that Kids Vision had been operating outside the regulatory framework, this fiction was quietly abandoned, and the Applicant failed to notify the Department, strongly supports the strongest sanction available.
If the Tribunal accepts the Applicant’s argument that Fact Sheet 9 might be said to provide some basis for claiming of benefits when a child is temporarily overseas, that does not support the evidence before the Tribunal of frequent listing of children who were not present, and the regular listing of persons who were not registered educators as providing care. The Applicant contended that he could not always know if a child’s name was recorded who was not present, and the Tribunal agrees with that and that the Department should allow a small amount of discrepancy in reporting to account for honest mistake. But, allowing for this, this does not address the magnitude of the documented misreported sessions of care, evidenced in the T-documents and the scale of which is referred to above.
The Tribunal does not conclude, on the evidence available, that the safety of children was threatened by the breaches. There was some evidence provided of frequent field visits to locations where Kids Vision was providing child care, which the Tribunal accepts. However, this is about the only point that the Tribunal is able to say goes in favour of Kids Vision’s governance structure in this consideration.
The Tribunal cannot reasonably conclude that, as the Applicant contended, Kids Vision has shown itself to be capable of ongoing compliance with its reporting obligations, given it had ‘self-identified the problem and fixed it internally’; what Kids Vision actually did was realise that it had been operating wrongly for several years and stopped the practice, hoping the regulator would not notice.  This conduct is far below what is expected of a provider of child care services.
The Tribunal concludes that the cancellation of Kids Vision as a provider for multiple breaches of compliance was the correct decision in law, and that the exercise of the discretion to apply the sanction to cancel the approval of Kids Vision as an approved child care service provider was the preferable decision. (paras.46-50)

Stay of Cancellation of Child Care Benefit Approval: Recent Federal Court Cases

Recently a number of cases have been heard by the Federal Court of Australia relating to applications to suspend or stay (i.e. put on hold) the cancellation by the Commonwealth Department of Education and Training of provider approvals of child care services under section 195H(1)(b), A New Tax System (Family Assistance)(Administration) Act 1999 (Cth). 

In Azaria Family Day Care Pty Ltd v Secretary, Department of Education and Training, the Department cancelled the approval on the basis of non-compliance with the family assistance law. In particular, it was alleged Azaria (the applicant, family day care provider) had: 

• not maintained, in some cases, the required documentation in relation to sessions of care provided to children aged 14 years or older or attending secondary school and that the applicant had submitted 415 reports for sessions of care where no one was eligible to receive child care service payments under the family assistance law, and had failed to remit to the Secretary fee reduction amounts that could not be passed on to families

• submitted attendance reports in respect of 614 sessions of care where there was no eligibility because “child swapping” had occurred, (where the child of an educator is cared for by another educator), for the period 1 January 2016 to 24 April 2018,
• reported 574 sessions of care involving two educators during periods when the educators were overseas
• inaccurately reported 208 sessions of care when the children concerned were overseas
• in respect of 2,421 sessions of care reported to have been provided to children of either 14 years of age or older, or attending secondary school, the applicant failed to comply with its obligations to keep a register or documentary evidence.

Azaria made a number of arguments in relation to suspending the operation of the cancellation including that it had applied for internal review of the decision and the Court decided that:

The applicant has made out a sufficiently arguable case for final relief which, in combination with the prejudice that it is liable to suffer if an order is not made, and in combination with the undertaking as to damages which is offered, make it just that an order be made under s 15(1)(a) of the ADJR Act substantially in the terms sought by the applicant.(para.51)

Interestingly, one of the orders the Court made was to suspend the cancellation from the dare of the hearing (1 November) until 11 December, or further order, despite the fact that the cancellation had come into effect on 17 October. 

The other case heard by the Federal Court recently was Al-Huda Pty Ltd v Secretary, Department of Education and Training. This also involved a family day care service provider. In this case the Department decided to cancel the approval of Al-Huda (the applicant) for a number of reasons including because it: 

• attributed care to educators who were in fact overseas at the time the care was reported to have occurred.
• reported attendances for children who were in fact overseas at the time the care was reported to have occurred. The service did not report such care as an absence in accordance with the absence rules.

In this case the applicant had filed an application for judicial review with the Court prior to the cancellation coming into effect (on 8 October) as well as applying for internal review of the decision. The Court initially stayed the decision. This case considered an extension to this stay. The Court decided an extension was warranted:

A brief review of the Notices [for cancellation] given to Al-Huda and the responses provided exposed a prospect that the 21 September 2018 decision may have been taken without taking into account submissions which had been made.
The primary bases upon which the stay was granted, accordingly, was that the proceeding then presented as one in which there was at least some prospect of legal error being ultimately exposed upon a final hearing and because of the likely disruption to the business operations of Al-Huda and those using the services it provided if a stay was not granted. A stay until 5 November 2018, it was considered, would at least permit the prospect that the internal review process could by then be completed. Given that the concerns of the Department had arisen by no later than 20 April 2018, the further continuation of payments for a comparatively short period of time was considered the preferable course to risking the disruption to the business operations of Al-Huda and the disruption of the services it offered to others.(paras.9-10)

Chidcare Services' Compliance with Privacy Laws

The Sector website recently published a report on childcare services' compliance with the Commonwealth Privacy Act 1988.

Reporting Child Abuse and Neglect Resource Sheet

Child Family Community Australia has updated its resource sheet: Reporting child abuse and neglect - Information for service providers.

Inadequate Supervision (Section 165, National Law): WA Approved Providers

According to information recently published on the West Australian Department of Communities' website, there have been a number of cases before the West Australian State Administrative Tribunal involving children who have left their services unsupervised in contravention of section 165, National Law.

In a case involving approved provider Prendco Pty Ltd, in relation to the Sonas Early Learning and Care Wattle Grove service, a child aged 1 year and 11 months left the service premises unnoticed and unsupervised until he was returned to the service. CCTV footage from various sources showed him wandering alone around various locations at the Wattle Grove Shopping Centre complex. A member of the public alerted the service who then sent a staff member to collect the child. The Tribunal ordered the approved provider pay a penalty of $10,000 for the contravention of section 165(1) and $1,000 towards the Department’s legal costs.

The other case involved Cachet Holdings Pty Ltd, approved providers of the Mulberry Tree Child Care - North Perth service. In this case, a nearly three year old child left the service unsupervised and was found crossing Grosvenor Street by two members of the public in their car. The Tribunal ordered the approved provider pay a penalty of $10,500 for the contravention of section 165 and a contribution of $2000 towards the Department’s legal costs. 

The Guardian Express also covered these two incidents.

Sonas Early Learning and Care Wattle Grove.

 

Sonas Early Learning and Care Wattle Grove.

Sonas Early Learning and Care Wattle Grove.

Sonas Early Learning and Care Wattle Grove.

Sonas Early Learning and Care Wattle Grove.

Sonas Early Learning and Care Wattle Grove.

Sonas Early Learning and Care Wattle Grove.

Contravention of Condition on Service Approval (Section 51(8), National Law): WA Department of Communities and Camp Australia Pty Ltd

According to information recently published on the West Australian Department of Communities' website, Camp Australia (with respect to the Camp Australia - West Leederville Primary School OSHC service) was found to have contravened a condition on its service approval, in that on 14 different days between 6-8 February and 22 May 2018 it cared for more than 30 children at any one time. The matter was heard by the West Australian State and Administrative Tribunal who ordered that Camp Australia, as approved provider, pay $210,000 for the contravention of section 51(8) and to pay a contribution of $2000 towards the Department’s legal costs. There were also a number of media reports on this case including in the the original report and follow up in the  West Australian, and The Sector.

Providing False or Misleading Documents (Section 295, National Law): Prosecution of WA Family Day Care Educator

According to information published on the West Australian Department of Communities' website, Nahid Mosa Hamouda Eltom was was convicted at the WA Magistrates Court on 15 October of contravening section 295(1), National Law by providing attendance records for six children to an authorised officer of the Department, knowing those records were false or misleading in claiming the attendance of the children on days they did not attend. Ms Eltom was ordered to pay a fine of $3,000 and $1,628.10 in legal costs.

Entitlement to Agent Commission on Lease: Awad v Australian Sales & Leasing Pty Ltd (trading as ASL Real Estate)

This is not a case directly relevant to childcare regulation but does involve a person (Magdy Awad) who previously operated an unapproved childcare service from the property the subject of this case, see the Victorian Regulator's website and news report for further information). 

In this case Magdy Awad (also known as Michael Awad) appealed to the Victorian Supreme Court against orders made by the Magistrate's Court in November 2017. The orders required the Appellant (Magdy Awad) to pay Australian Sales & Leasing Pty Ltd, the Respondent, the sum of $47,040, together with interest of $8,058.66, with costs to be agreed between the parties; failing which there was liberty to apply. The Appellants appeal failed as the Court determined that the Respondent had complied with the conditions of its Exclusive Commercial Leasing Authority with the Appellant and therefore was entitled to the commission. The Authority provided that the Appellant agreed to appoint the Respondent on an exclusive basis for a period of 14 days (from 16 to 30 September 2015) to lease the property at 84 Olympic Parade, Kangaroo Flat, and to sell the Appellant’s plant and equipment located at the property.

The appellant has also been involved in other litigation, in relation to the property, in the Supreme Court.

Regulation and Regional Childcare

ABC Online recently published a story on the impact of regulation on the availability of childcare in regional areas.

Stay of Cancellation of Provider Approval: Kuol t/as Care Family Day Care v Queensland Department of Education

This case involves an application to the Queensland Civil and Administrative Tribunal for an order to stay (put on hold) the decision of the Queensland Regulatory Authority to cancel the provider approval of the applicant (Kuol Atem Kuol Kuol) issued under the National Law.

In making the decision to cancel the Applicant’s provider approval, it was found that there were extensive breaches of the National Law and Regulations (outlined in para. 13 of the judgement). 

The Tribunal refused to stay the cancellation, stating that:

The Applicant denies that the continuation of the family day care service by him would constitute an unacceptable risk to the safety, health or wellbeing of any child and “does not agree that all of the alleged non-compliance took place”. Though he does acknowledge that many of the breaches did arise, the Applicant has endeavoured to excuse or downplay the breaches or categorise them as aberrations or as having little or no impact on the safety, health or wellbeing of any child.
The show cause notice was issued to the Applicant on 9 March 2018 and responses were provided on 11 and 12 April 2018. The cancellation decision was made on 19 June 2018. Annexed to that decision were 55 pages of findings. Those findings included a detailed reply to each issue raised in the responses to the show cause notice and listed a number of instances where, in the view of the Respondent, claimed compliance by the Applicant did not meet regulatory requirements, or unsatisfactory responses had been provided, or no evidence had been produced to show that indicated changes had been implemented, or the responses were not consistent with photographic evidence. It was also noted that the indicated updated policies and procedures had not been provided. Further, there was no indication of the processes or procedures that had been set in place to ensure ongoing regulatory compliance.
Other than providing a list of professional development training sessions conducted, the Applicant has not questioned or responded to any of the concerns listed in the Respondent’s findings, save for noting that the family day care service has continued to operate and asserting that there is no current risk to children. That bald assertion, in the context of a failure to answer the many outstanding issues raised by the Respondent, in itself reflects a misunderstanding of the importance of regulatory compliance and a lack of appreciation of the legislative objective of ensuring the safety, health and wellbeing of children and of the guiding principle that best practice is expected in the provision of education and care services.
Certainly, there is no indication as to why it is perceived that there is no risk to children in circumstances where there is neither an itemised challenge to the concerns raised by the Respondent in its findings, nor an explanation as to how regulatory compliance is now satisfied. In the main, changes outlined by the Applicant are expressed in terms of proposals, with little or no indication or evidence that they have been implemented.
In relation to interests affected, the Applicant states that the income from the Care Family Day Care is a ‘substantial’ part of his family’s income and that if the cancellation takes effect he will lose educators and families and that it is unlikely that he will be able to repair the damage to the goodwill of the business. However, no details are provided as to how substantial the loss will be. Nor is there elaboration on the stated damage to the good will of the business said to be a consequence of the cancellation of the provider approval, or any indication of the contribution of the Applicant’s acknowledged breaches of the National Law and National Regulations to any loss of good will.
The Respondent opposes the stay application on the basis that a stay would present a risk to, or would not ensure the safety of, the health and wellbeing of children attending the Applicant’s family day care service as contemplated by the National Law and, further, because the Applicant has given no indication as to why a stay would be in the public interest. The Respondent submitted, among other things, that the Applicant does not identify in a meaningful way the impact of a stay on those other than himself, that it has not been demonstrated that the means of addressing the relevant risks put forward by the Applicant are sufficient and/or have been implemented, that the findings and reasons of the cancellation decision are detailed and well considered and were in accordance with principles of procedural fairness, and that the Applicant has not provided any supporting evidence with respect to any alleged prejudice to interests. The Respondent also refers to the primacy of the best interests of children in education and care services under the National Law.(paras. 14-19).

Breach of Lease: Medi-Aid Centre Foundation Ltd v Joys Child Care Ltd

The New South Wales Supreme Court recently heard a case involving Medi-Aid Centre Foundation (plaintiff) suing Joy's Child Care (defendant) for breach of lease of premises (see also previous post regarding this provider). The case is a complicated one and there are a number of issues involved. However, one issue raised in the case is of particular interest as the Court was required to assess whether Joy's had complied with its obligations under the National Law. The defendant's argument that it had complied was an interesting one. The Court said:

Under the lease, the defendant covenanted to comply with all laws regulating how the premises were to be used, including obtaining the essential licences needed and keeping current any licences or registration required for the use of the premises or for the conduct of the defendant's business there (see cl 6.1.4 of the lease).
Mr Issa gave evidence that the defendant had its provider approval suspended and subsequently cancelled, effective from 12 April 2017. 
Mr Shang conceded that child care services are being carried out of the premises from the end of February 2016 to mid-2017 involving up to 20 children at a time with at least three or four educators. The defendant operated, therefore, the child care centre without provider approval, ultimately resulting in the Department seeking injunctive relief against the defendant to which I have earlier referred in this judgment. 
The defendant contended that it was engaged in trial services but there is no exception in the National Law for such purposes. 
It follows that the carrying on of such services whilst the relevant approvals were suspended or cancelled was a breach of the lease (paras. 144-8).