Child Injured at Queensland Chilcare Centre

ABC Online reported on an alleged incident of a two-year-old child whose toe was partially severed, requiring surgery.

Cancellation of Child Care Benefit Approval: Jessica Education Centre Pty Ltd and Secretary, Department of Education and Training

This case involves an application for review of the decision by the Commonwealth Department of Education and Training (respondent) to cancel the Child Care Benefit Approval of Jessica Education Centre Pty Ltd (applicant). The review was heard by the Australian Administrative Appeals Tribunal which determined that it had three issues to determine:

• whether the Tribunal is satisfied that the Applicant failed to comply, or is not complying, with a condition for continued approval as an operator of an approved child care service under the family assistance law; and
• if so, whether to impose a sanction on the Applicant, and
• if so, which sanction to impose.

A number of breaches were alleged by the Department:

• reporting 447 sessions of care when that care could not have been provided because the educators were overseas at the time those sessions of care were reported;
• reporting 471 sessions of care when that care could not have been provided because the children were overseas at the time those sessions of care were reported
• reporting 39 sessions of care that could not have occurred because those sessions of care overlapped with sessions of care reported by other services;
• reporting 595 sessions of care as “absences” under section 10 of the Assistance Act before the child had either commenced with the service, or after the child had permanently ceased to attend the service, and were therefore not absences;
• reporting 85 sessions of care that were not provided as reported, where visits to the educator’s homes indicated that care was not being provided on the days that those sessions of care had been reported;
• submitting 1,036 enrolment reports between the period of 1 January 2015 and 15 October 2017, and 19 enrolment reports between the period of 22 October 2017 and 14 January 2018, outside of the timeframes prescribed by subsection 219AB(2) of the Administration Act;
• submitting 528 attendance reports between the period of 1 January 2015 and 15 October 2017 and 47 attendance reports between 28 November 2017 and 7 February 2018, ou.tside the timeframes prescribed by subsection 219N(5) of the Administration Act.

The applicant blamed these breaches on clerical errors, software errors and educators. The Tribunal upheld the decision of the Department stating:

This matter raises two very serious issues. Firstly, the care and welfare of children, especially very young children, and secondly, the misuse of public funds. To some extent, the issues are intertwined, for example where there has been a failure to provide proper oversight of educators or a failure to be aware of what was happening “on the ground”. Both issues go to the very heart of the Applicant’s suitability to hold a licence under the relevant legislation.
The breaches have been both extremely serious and very frequent. The misreporting of attendances has resulted in a significant misappropriation of public money but perhaps of even greater seriousness is the apparent failure to ensure that the educators were aware of their responsibilities, that the educators were properly supervised and that the whereabouts of the educators and the children for whom they were responsible were known at all times. When it comes to the welfare of children there is no place for non-compliance or any lack of vigilance in relation to all aspects of their safety and well-being.
I accept the Applicant’s evidence as to the pressures faced in operating the centre, as well as the difficulties arising due to the fact that for many of the educators, the children and their parents, English was a second language. I also accept that the Harmony software program caused very significant difficulties in reporting to the department and meeting requirements. Mrs Choi, a director of the child care service who represented the Applicant at the hearing, came across to me during the course of the hearing as both intelligent and caring. I am sure that the demands of running a large childcare operation became overwhelming for her, particularly given her lack of experience.
Despite this however, the legislation is clear as to the responsibilities of the operator and it is also clear that these responsibilities cannot be delegated to others. I note that section 4A of the Breach Determination creates a presumption in favour of cancellation in circumstances where there are repeated breaches of reporting obligations or there are contraventions involving a failure to comply with obligations relevant to children’s health and safety.
As outlined above the failures to comply in this case were very serious in number and even more alarming in terms of the potential risk to children. Taken together it is hard to conclude that any sanction other than cancellation of the Applicant’s license is the appropriate one.
I have considered the possibility of suspending the license but again, the nature of the breaches and the number of the breaches points to a reckless disregard for the welfare of the children, the obligations in relation to the use of public funds and the obligations to exercise due care and diligence in reporting (paras 33-38).

Queensland Launches Register of Blue Card Status of Home-based Carers

The Queensland Attorney-General and Minister for Justice has issued a media release in relation to the launch of a register of home-based carers who have applied for, or hold a current blue card (working with children card) giving key State Government agencies the ability to check the status of those who may be involved in the care of a child or young person.

Early Childhood Centres in High-rise Buildings - Review of Building Code

The Australian Building Codes Board (ABCB) is proposing amending the 2019 edition of the National Construction Code (NCC 2019 Amendment 1). One of the amendments enhance fire safety measures for early childhood centres in high-rise buildings.The ABCB was directed by the Building Ministers’ Forum to undertake the review.

The ABCB has developed an options paper and amendments which it has sought public comment on by 11 October. Further details can be accessed from their consultation hub.

Further 22 People Charged Over NSW Family Day Care Fraud Syndicate

NSW Police issued a media release in relation to this matter. ABC Online also reported on this police operation.

Planning Approval: Creative Drafting Services v City of Parramatta Council

This is another interesting NSW planning case in relation to a development approval for a childcare centre in which issues were raised relating to the National Law and Regulations. In NSW such applications require the approval of the Regulatory Authority under the National Law (Department of of Education)  under clause 22 of State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, which relates to space requirements.

The Land and Environment Court in its findings stated:

The critical contentions to be resolved in this appeal relate to the fact that what is proposed is a sensitive use, a child care centre, adjoining two major roads. Such a location will result in adverse impacts on the children at the centre, unless those impacts can be satisfactorily resolved.
In this regard, on the threshold issues, the application fails on a number of jurisdictional grounds, even before the related merit tests are considered.
Firstly, concurrence was refused by the Regulatory Authority to the application and is a mandatory requirement to the granting of consent. The Court has the power to overturn this decision and issue the required concurrence. However, given the advice of the Regulatory Authority, and the circumstances, I fail to find any reason to do this.
Specifically, the issues raised by the Department in not granting concurrence were not adequately resolved or addressed by the applicant to the extent that would warrant the Court not accepting the reasons provided by the specialist Department in not granting concurrence to such an application. The weight of the evidence was that these reasons were, and remain, valid.
In particular, and most critically, there was no evidence offered by the applicant of any exceptional circumstances which warrant or require the use of this site for a child care centre necessitating simulated outdoor play space in lieu of the unencumbered actual outdoor play space which is required, but not able to be provided, given the form and location of the development proposed.
It is the locational constraints associated with the site chosen and the decision to retrofit an existing building, rather than designing a new development, that limits where usable and acceptable outdoor play areas can be located.
In this regard, I do not accept that a hostile external environment constitutes an exceptional circumstance, unless there are no other alternatives to locate a child care centre in the area, and the area requires such a centre. There was no evidence that this was the case.
To the contrary, I consider that it is likely that there are other sites within the B6 zone, or the locality, where such a use could be better located and where the constraints of retrofitting a commercial building, thus limiting where outdoor play space can be provided and appropriately treated, do not exist. I will deal with whether this is a relevant consideration shortly.
Whilst I do accept that, for example, in the Sydney CBD there are few options to provide outdoor play space other than in simulated environments, that is not the case in a suburban location, such as Silverwater, which is not a major commercial hub or constrained by existing high rise built form and limited available sites with sufficient area to provide outdoor play spaces with the required level of amenity.
The applicant simply failed to demonstrate what the exceptional circumstances are. I agree with Mr McDonald that the site is surrounded by a hostile external environment but I also agree with Mr Eastman that, if a site with a hostile external environment constitutes exceptional circumstances, there could be many poor outcomes in terms of where child care centres may be situated in the future, notwithstanding the site context.
Turning to the other grounds cited for withholding concurrence, for reasons which I will outline shortly, I do not accept that the air quality impacts were adequately resolved.
Nor do I accept that viewing a few trees in the reserves of heavily trafficked roads, or in proposed landscaping visible in gaps between acoustic walls, would provide the treed outlook for children from the simulated outdoor space as sought by the Department in order for concurrence to be issued.
Finally, the applicant did not adequately address the specific concern raised by the Department that there were child care vacancies ‘in the surrounding suburbs’, instead relying on an analysis which only considered the Silverwater postcode (2 suburbs) and with findings of likely demand not supported by other evidence before the Court.
In summary, there is no basis, nor any justification provided, to warrant overriding the decision of the Regulatory Authority, with specialised knowledge in child care centres, not to issue concurrence.
As concurrence is a jurisdictional issue which must be satisfied in order to issue consent, and I do not intend to provide that concurrence, the application fails and must be refused. (paras 200-215)

Latest WA Compliance Actions

Details have been published by the Western Australia Regulatory Authority under the National Law, Department of Communities, about recent compliance action:

The West Australian State Administrative Tribunal (WASAT), in Chief Executive Officer, Department of Communities and WorldOf Kids Pty Ltd, made an order in relation to a matter brought before the tribunal by the Department for contravention of the National Law. In this case the approved provided was found to have breached section 167(1), National Law, when a 10 1/2 year old child badly injured themselves on a tree stump at the Fun-A-Rama Halls Head service. A penalty of $13,000 was imposed on the approved provider and a further $2,000 was to be paid by them as a contribution towards the Department's legal costs.

In a matter heard by the Fremantle Magistrates Court, on 21 August 2019, Zoie Anne Fenner-Dale pleaded guilty to five charges of working as an educator while under a prohibition notice, 25 charges of providing the Regulatory Authority with documents she knew were false or misleading, and one charge of obstruction and two charges of holding herself out as a certified supervisor when she did not hold a supervisor certificate. She will be sentenced on 22 October 2019 at the Fremantle Court.