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.