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.