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)