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).