Imposition of Licensing Conditions: Simiana v Harness Racing New South Wales

Although this is not a decision in relation to the Education and Care Services National Law, it does provide some guidance in relation to Regulatory Authorities imposing discretionary conditions on provider or service approvals (i.e. under sections 19(1), 23(2), 51(5)(b) or 55(2)). 

In this case, heard by the NSW Supreme Court, Mr Simiana) sought judicial review of a decision made by Harness Racing New South Wales (HRNSW) to impose conditions on his trainer’s and driver’s licence. He challenged the decision on a number of grounds including lack of procedural fairness and unreasonableness of the decision (based on administrative law principles). The Court found in favour of Mr Simiana holding that:

• procedural fairness required that HRNSW seek submissions or comment from Mr Simiana before imposing conditions. However, there was no opportunity given to make submissions concerning the practicality of compliance with any conditions, (let alone the ones that were proposed) or his capacity to comply with them. (paras. 61-75).
• the content of some of the conditions were unreasonable, in that they were “capricious”, “irrational”, and “lacking in evident or intelligible justification”. (para.112).

Fraudulent Claim of Social Welfare Benefits: Warden v The Queen

This case involved an appeal to the Court of Appeal (Supreme Court of Victoria) by Lyn Warden against the sentence imposed on her by the Country Court for obtaining a financial advantage by deception from a Commonwealth entity, contrary to section 134.2(1), Criminal Code Act 1995 (Cth) (see my previous post on this case). Ms Warden was engaged full-time as an independent contractor to the Hobsons Bay City Council providing family day care services to children in her home while receiving a Disability Support Pension. 

Before the Court of Appeal Ms Warden sought leave to appeal against her sentence on the ground that it was manifestly excessive because insufficient weight was given by the County Court judge to:

• her age and lack of prior criminal history;
• the circumstances in which the offending occurred;  
• the application of the Verdins principles; 
• her remorse and low risk of re-offending; and 
• her prospects of rehabilitation.

 

The Court refused her application for leave to appeal against the sentence imposed:

In my opinion, it is not reasonably arguable that the sentence is manifestly excessive.The matters upon which the Crown has relied in combination demonstrate that the sentence is well within the range of sentencing options that was open to the judge.  In particular, having regard to the prolonged period over which the offending occurred and the large amount of money involved, the offending can only be regarded as serious. There are many members of the community who, like the applicant, are motivated by desire to financially provide for their families.  However, unlike the applicant, the vast majority do so honestly rather than by resorting to calculated and prolonged courses of fraudulent conduct. 
I do not accept the applicant’s submission that the judge gave insufficient weight to the mitigating factors upon which she relied.  When the serious nature of the offending is considered in the light of the maximum penalty of 10 years’ imprisonment, one would ordinarily expect a sentence greater than 3 years’ imprisonment and the custodial component of the sentence to exceed 14 months.  The fact that the judge imposed the sentence that she did can only be explained on the basis that she gave full weight to those mitigating factors.
While so-called comparable cases are not precedents and care must be exercised in how they are used to assess the appropriateness of a sentence in a given case...the sentences imposed in the cases of Leighton, Barton and Pham, upon which the Crown has relied, indicate that the sentence imposed by the judge is consistent with current sentencing practices and is not manifestly excessive. (paras. 38-41).

Outdoor Space Requirements (Regulation 108): Tahany Pty Ltd v Woollahra Municipal Council

I rarely cover planning decisions in this blog as generally they don't directly relate to the interpretation of the National Law or Regulations. However, in this case, before the NSW Land and Environment Court, the Court made comments in relation to the policy of the NSW Regulatory Authority (Department of Education).

I won't go into the details of the case, however, Tahany sought development consent to change the use of an existing dwelling to a child care centre for 30 children, as well as alterations and additions to the existing building to accommodate the proposed use. The application was refused by the Council and so it appealed to the Court. It should be mentioned that in NSW part of planning law is the Child Care Planning Guideline (CCPG) which includes guidelines on the application of the National Regulations to development (or planning) applications.

A number of issues were canvassed in the case including simulated outdoor space (paras.77-87) and the sufficiency of outdoor space. In regard to the latter issue, the Court commented on the Regulatory Authority's interpretation of the National Regulations:

The fourth issue, which was also raised in the Second Further Amended Statement of Facts and Contentions, is that the total of the outdoor play areas is insufficient as all the areas are not available at all times. This issue is based on two concerns. First, Dr Abbey expressed concern that this meant that the children are not getting sufficient play in the outdoor environment, or sufficient active play. Second, Dr Abbey referred to a directive from the regulatory authority that, for the purpose of determining service approvals, officers are only to take into account outdoor space available to the children at all times during the services’ operating hours to calculate the amount of outdoor space and determine whether 7m2 is provided for each child.

With respect to the first concern, Tahany notes that this was not raised in any contention by the Council but submits that on the indicative program in the Plan of Management, there is sufficient active play. It relies on the evidence of Ms Campbell that, on the calculation that the indicative program allows 1hr 36min of active play, this is sufficient active play to be provided at a child care centre. Further, her evidence is that she could prepare a program that provides more opportunities for active play and outdoor play, including for up to 3 hours of active play for each child, even with the restrictions on some of the areas.

I accept this submission and the evidence of Ms Campbell. The restrictions on the hours of use of particular outdoor play areas are not overly constraining and as such they allow adequate time for outdoor play. Further, I accept the evidence of Ms Campbell that additional active play could be accommodated in a timetable or program if required.

With respect to the directive from the regulatory authority, Tahany submits that there is no legislative basis for that directive. That is, there is nothing in the ECS Regulations, the controls or the CCPG that says that the outdoor space requirement in Regulation 108 must be available at all times that the centre is operating. Tahany also relies on the decision of Kamrani Holdings Pty Ltd & Anor v Willoughby City Council [2016] NSWLEC 1146, in which there were restrictions placed on the hours of use of outdoor play areas, and those restrictions did not result in an issue concerning the sufficiency of the area provided for outdoor play.

I accept the submissions made on behalf of Tahany. There is nothing in the ECS Regulations, the controls or the CCPG which prevents outdoor play area that is only utilised for part of the day from being included in the calculation of the total area. Secondly, the indicative program demonstrates that the restrictions can be accommodated within a daily program whilst also allowing the children to have adequate outdoor and active play.

As a result, based on the evidence of Ms Campbell, I consider that the outdoor play areas are sufficient to accommodate the number of children proposed in the development application. The division of the total outdoor space into four different play areas, including the SOPA, allows different experiences to be provided in each of the play areas. The indicative programs demonstrate that it is intended to rotate children through those areas so that each child has the opportunity to have those different experiences. (paras.95-100).

Review of Victorian Child Safe Standards

The Department of Health and Human Services is currently undertaking a review of the standards "to ensure that they are as strong as possible". It has published an issues paper and is seeking submissions on the standards by 22 February 2018. 

The standards are implemented by the Child Wellbeing and Safety Act 2005 and Child Wellbeing and Safety Regulations 2017 (see also the Standards published in the Victorian Government Gazette). They apply to all Victorian organisations that provide services or facilities for children or employ children or young people (including childcare services). The standards are a compulsory framework that support organisations to be safer for children.

Stay of Cancellation of Child Care Benefit Approval: Happy 'N' Friendly Day Care Pty Ltd and Secretary, Department of Education and Training

This is another case heard by the Australian Administrative Appeals Tribunal, which is very similar to the one involving Galaxy Day Care Pty Ltd (see previous blog post).

This case involved an application for the stay of a decision made by the Department of Education and Training (the Respondent) to cancel the registration of Happy ‘N’ Family Day Care Pty Ltd (the Applicant) as a provider of day care services under the A New Tax System (Family Assistance)(Administration) Act 1999 (Cth). On 25 September 2018 the Department cancelled the Happy "N" Friendly's approval. On 9 October 2018 the Applicant sought an internal review of the cancellation decision. The Applicant also appealed to the Federal Court for a stay of that decision on 19 October 2018. The Federal Court granted a stay until 16 November 2018 in order to provide time for the internal review to be conducted.  On 15 November 2018 the Respondent notified the Applicant that its internal review had resulted in an affirmation of the original cancellation decision. The Applicant returned to the Federal Court on 16 November 2018 requesting a further stay until an appeal against the decision could be heard by this Tribunal and, on the 28 November 2018 applied to this Tribunal for such a review. The Federal Court, by consent of the parties, granted a stay effective to the date on which the Tribunal “determines the Applicant’s application for a stay of the Decision.”  The basis for the Department's cancellation are outlined by the Tribunal:

The basis of the cancellation decision lies in the Respondent having found the Applicant to be seriously non-compliant, and indeed misleading, in its reporting of its activities under section 219N of the Act; making false claims for payment of child care benefits, including:

·    211 instances where payments were made but the relevant educators were overseas at the time

·    567 instances where payment were made but the child in question was overseas

·    718 instances of “child swapping” where payments were made to non-eligible individuals

·    2350 occasions where payments were made in respects of children who were either in school or else over the age of 14 years when no such payments should have been claimed.
These identified breaches occurred in the period from 1 January 2016 to 18 April 2018.
Moreover there appear to have been breaches of statutory requirements related to the passing-on to parents, or remitting to the Commonwealth, monies related to child care fee reductions.
In addition to these instances, the Respondent notes (and categorises) some 4,313 instances which it describes as “further apparent contraventions of the family assistance. (paras.24-7).

The Tribunal decided not to grant the stay on similar grounds to the Galaxy case.

Stay of Cancellation of Child Care Benefit Approval 2: Galaxy Day Care Pty Ltd and Secretary, Department of Education and Training

This is a further case involving Galaxy Day Care Pty Ltd in its attempts to stay (put on hold) the decision of the Department to cancel its childcare benefit approval. 

This case was heard by the Australian Administrative Appeals Tribunal and involved an application for the stay of a decision made by the Department of Education and Training (the Respondent) to cancel the registration of Galaxy Day Care Pty Ltd (the Applicant) as a provider of childcare services under the A New Tax System (Family Assistance)(Administration) Act 1999 (Cth). The stay was being sought to enable it to be paid childcare benefits until the decision was reviewed by the Tribunal.
On 2 October 2018 the Department cancelled Galaxy's approval. Galaxy appealed to the Federal Court for a stay of that decision on 8 October 2018 and also made an application to the Respondent for an internal review of their decision on 10 October 2018. The Federal Court granted a stay until 22 November 2018 in order to provide time for the internal review to be conducted (see my previous blog post). On 21 November 2018 the Department notified the Galaxy that its internal review had resulted in an affirmation of the original cancellation decision. The approval was cancelled on a number of grounds  by the Department (as stated by the Tribunal):

The basis of the cancellation decision lies in the Respondent having found the Applicant to be seriously non-compliant, and indeed misleading, in its reporting of its activities under section 219N of the Act; making false claims for payment of child care benefits and breaching the ratio requirements of educators to children. It found these breaches to have taken place over a lengthy period from July 2017 to April 2018.These breaches were numerous, including 112 occasions when the Applicant made inaccurate claims that services were provided by educators who were overseas at the time of reported sessions; 118 where children were overseas and 210 where children were no longer in receipt of the Applicant’s services. There were some 700 further instances related to breaches of ratio requirements or misreporting resulting in overpayments of public money. (paras.20-1).

The Tribunal decided to not grant the stay, commenting:

Consideration of all the matters placed before the Tribunal must be undertaken in the light of the express purpose of s. 41(2) of the AAT Act which is that stays should be granted essentially “for the purpose of securing the effectiveness of the hearing and determination of the application for review” and the legitimate interests of other parties “affected by the review”.
The Tribunal is not persuaded that the granting of a stay in this instance is required in order to ensure that those express objectives are met. On the other hand it is persuaded that the Tribunal’s overall responsibility to promote “good government”, in this instance via protection of the public interest, weighs against a stay being granted. (paras.60-1).

Dishonestly Obtaining a Financial Advantage: Director of Public Prosecutions (Cth) v El-Haouli

In this criminal case, heard by the Victorian County Court, Ramsey El-Haouli, pleaded guilty to two charges of dishonestly obtaining a financial advantage from a Commonwealth entity contrary to subsection 134.2(1) of the Commonwealth Criminal Code. The circumstances were that while Mr El-Haouli worked as a Family Day Care Educator with Kids R Kids Family Day Care he claimed Carer payments without notifying the Commonwealth Department of Human Services of the employment or income received.

The Court imposed a total sentence of 15 months’ imprisonment. However, Mr El-Haoluli was required to serve 5 months of that sentence in custody. Once that time is served, he may be released on recognisance in the sum of $1000, a condition of which is that he is required to be of good behaviour for a period of 15 months. If he breaches any of the conditions of that recognisance he can be brought back to court and, in addition to forfeiting the $1000, may be required to serve the balance of the sentence, 10 months, in gaol.