Hot Weather Risks for Childcare Services

A number of Regulatory Authorities (under the National Law) have issued information and advice to services about Summer weather risks. The NSW Department of Education have a web page about hot weather risks for children. The Queensland Department of Education have recently published advice on staying safe during Summer.

Seasons Greetings

Thanks to all subscribers for your interest in the blog over the past year. All the best for the New Year!

 

Update of Approved Learning Frameworks under the National Law

The Education Council has commissioned an update of the two national approved learning frameworks under the National Quality Framework. The stakeholder feedback and engagement process is to commence from mid-2021. The terms of reference, including the timeline for the review, can be found on the Education Council website. More information is also available from the ACECQA website.

Consultation Regulatory Impact Statement on Streamling Early Childhood Education and Care Approval Processes

Following consultations over the last four years, the Commonwealth Department of Education, Skills and Employment has released a Consultation Regulation Impact Statement exploring and discussing options for streamlining the Early Childhood Education and Care approval processes across jurisdictions. Submissions close on 8 January 2021. Further information is available from the ACECQA website. The Sector website also published an article on release of the paper.

How Early Childhood Education and Care Services Can Plan and Prepare for Bushfires

The NSW Department of Education (NSW Regulatory Authority under the National Law) has recently updated its advice on this issue.

NSW South Coast Childcare Worker Accused of Sexual Assault Gets Bail

 ABC Online today carried an article on this case.

Planning Application for Childcare Centre: Ekon Pty Ltd v Hornsby Council

This case was heard by the NSW Land and Environment Court and concerns an appeal under section 8.15 Environmental Planning and Assessment Act 1979 against the refusal by the Council of a Development Application for the demolition of existing structures and construction of a 52 place child care centre at 53-55 Oakleigh Avenue, Thornleigh. One of the issues that arose in the case is the scope of regulation 108, National Regulations. The Tribunal made the following findings (paras. 94-102):

Clause 108 requires that there be 7 sqm of unencumbered outdoor space for each child. The National Regulation excludes from calculation any pathway, car parking, storage shed or area and any other space not suitable for children. The Council does not suggest that any of those exclusions apply. I agree.

The Council argues that the landscaping within the outdoor area encumbers that area and should be excluded from calculation. If that be so, there is a shortfall.

The uncontested evidence of Ms Campbell is that outdoor play areas can include landscaping and such vegetation can provide both amenity and opportunities for interaction for the children. The Guideline refers to exclusion of dense hedging or planting along boundaries which are designed for landscaping purposes and not for children’s play.

“Unencumbered” means free of encumbrance and “encumbrance” is relevantly a hindrance (Macquarie Dictionary 5th Ed). Logically the phrase unencumbered outdoor space anticipates an area where children are not hindered from playing. A dense hedge is one example of what may be assumed to be like a solid barrier of vegetation, therefore a hindrance or encumbrance.

Here the landscaping is within a garden bed and is characterised by low plantings, shrubs and occasional trees. It is not proposed as a barrier and will not form a dense hedge. Children will be able to enter the garden bed and interact with the vegetation and whatever else may be found in the garden beds and enjoy the shade of the trees. Landscaping should be part of an outdoor play area for children. Figures 9 and 10 in the Guideline show that there is landscaping provided in the graphically demonstrated unencumbered outdoor space.

In my opinion it is appropriate to include the landscaped area as unencumbered outdoor space. The proposed development therefore complies with cl 108.

Two further observations ought be made. First, considering the provisions of the Guideline, the landscaping is mostly of a height lower than the boundary fence on Nicholson Avenue and the hedging fronting Oakleigh Avenue. That is, it is not for the most part landscaping which will be appreciated from outside the site. It is not “for landscaping only” because it cannot be seen from beyond the site. It is designed to engage the children and provide a benefit for them.

The second observation is that the standard of 7 sqm per child must anticipate that a significant percentage of children will utilise the outdoor play area at the same time. That is, the standard applies whether all the children are utilising the area, or whether, for other reasons only a small number of children can use the area at the one time. Here the acoustic goals can only be met if there are never more than 12 children able to use the outdoor play area at any one time. The required area for outdoor play is based on the potential use by 52 children. Whilst I accept that the standard probably did not assume all children using the outdoor area at the same time, it must have assumed a high proportion of children using it at the same time. Certainly the potential here for 12 children out of a possible 52, or even 12 out of a possible 34 children 2 years and above, is a lower proportion than would have been expected when the standard was determined. Ms Campbell in her evidence said the proportionate use of outdoor play area was low.

It follows that in my opinion even if the landscaped area was excluded, then the unencumbered outdoor space would meet the standard for 49 children (344 sqm /7 sqm per child), still well in excess of the maximum number of concurrent users proposed, and so I would consider it adequate and acceptable. If it was necessary, I would exercise the concurrence function of the Regulatory Authority and find the provision of unencumbered outdoor play area acceptable.

 

 

Cancellation of Childcare Benefit Approval: Mohamed trading as Billan Family Day Care v Secretary, Department of Education, Skills & Employment (No 2

In a previous blog post, I reported on a case in which the Federal Court granted a stay of cancellation of CCB approval of Billan Family Day Care. In this case, the Court heard the appeal against cancellation by the Department. The application for review of the decision by Billian was made on the interpretation and application of the applicable legislation. The Court held that the Department made the correct decision in cancelling approval which was based on the applicant having not complied with one or more conditions for continued approval. Amongst other things, these related to inaccurate reporting of care and failure to comply with the National Law and Regulations (see paras. 26-33).

Sale of Childcare Centre: LEA Child Care Services v Development Learning Centre Rainbow Pty Ltd

This is an interesting case heard by the Victorian Supreme Court. In this case the purchaser of a childcare centre sued the seller of the centre for breach of contract when a number of child enrolments were transferred to the seller's other, nearby, service prior to finalisation of the sale.

Five Arrests Related to Alleged Criminal Network Connected to Multi-million dollar Family Day Care Fraud

The Australian Federal Police have issued a media release on the latest arrests to do with alleged Family Day Care fraud. Articles also appeared in The Age and ABC Online.

Hot Weather Risks for Children

The NSW Department of Education (Regulatory Authority for NSW under the National Law) has recently updated its advice on this risk.

Managing Allergic Reactions in Early Childhood Education and Care Services

The NSW Department of Education (the Regulatory Authority under the National Law in NSW) has published information on this issue on its website.

NSW Government Seeks Feedback on Proposal to Streamline Childcare Planning Approval Processes

The Sector website reported on this consultation. Submissions are called for by 17 December. More information is available from the NSW Government Planning Portal.

Working With Children Checks: SMA v Director General, Department of Justice and Attorney General

This is an interesting case heard by Queensland Civil and Administrative Tribunal. SMA had been issued with a Prohibition Notice under the National Law. the basis of the Notice was that SMA had used inappropriate physical discipline on children in her care; made inappropriate comments to children within her care; used a chemical compound (acid) as a cleaning substance without taking all reasonable steps to ensure children were not exposed to the substance; and lit a cigarette in the yard where children were present. SMA later unsuccessfully applied to the regulator (Department of Education) to have the prohibition notice cancelled. SMA had direct involvement in the management of and was the sole director of an early childhood learning centre. The case before the Tribunal was an application by her for her blue card to be reinstated. The Tribunal determined that there were not grounds to do so (paras. 36-7):

Having considered all the evidence in this matter, I am of the view that in the absence of tangible evidence to support a SMA’s assertion that her counselling and mentoring has reduced those concerns raised, there still remains an apprehension whether it would be in the best interests of children for a positive exemption notice and an exemption card to be issued to SMA at this particular time.

In reaching that conclusion just outlined, I acknowledge that SMA has taken steps to address those concerns raised.  However, notwithstanding the approaches she has already undertaken, I am not satisfied that those steps have reached the appropriate threshold to address the concerns which led to the decision being made.  Perhaps at some indeterminate time in the future, SMA might be better placed to reinvigorate her application with the assistance of further evidence of a therapeutic reduction of the risks identified. 

More Family Day Care Fraud Arrests

The Australian Federal Police have issued a media release in relation to arrests as part of Operation Persei. A more detailed report was published by The Sydney Morning Herald.

Red Nose Statement on Safe Sleep Practices in Childcare Settings

In response to the pending coronial enquiry into the death of a child two years ago at a Sydney childcare service (see previous post), Red Nose issued a media release.

Inadequate Supervision: Chief Executive Officer, Department of Communities and K G Coleman Pty Ltd t/as 4 Big Kids

This case was recently adjudicated by the West Australian State Administrative Tribunal. In this matter an order was made which gave effect to the terms of settlement in relation to a matter brought before the tribunal by the WA Regulator (Department of Communities) for contravention of section 165, National Law, by the approved provider (KG Coleman Pty Ltd) by failing to ensure that all children being educated and cared for by its service were adequately supervised at all times that the children were in the care of the service. The contravention related to the 4 Big Kids service at North Mandurah Primary School. The facts of the case are set out in the statement of relevant facts (Annexure A to case summary). In summary, a 6 year old child was left at the service alone and unsupervised when two educators left the service to take the rest of the children to various schools. The school cleaner and school teacher found the autistic child in a distressed state and unable to leave the room.

A penalty of $9,000 was imposed on the approved provider with a further $1,000 to be paid to the Department for legal costs.

In Western Australia, uniquely, such matters as this are generally heard as disciplinary matters under the National Law (WA), see the article by David Oliver in The Sector that explains the process in detail.

The Department of Communities issued a media release on this case.

Sixteen Children Allegedly Sexually Abused at NSW Mid-North Coast Childcare Centre

ABC News Online carried a report on this matter. The AFP also issued a media release in relation to the Operation Arkstone police investigation.

Appeal to Federal Court: Al-Huda Pty Limited v Secretary, Department of Education, Skills and Employment

In a previous post I reported on the decision of the AAT to support cancellation of the provider's CCB approval by the Department. The provider appealed to the Federal Court. In this case the provider was successful and the Court ordered that the appeal be allowed, the Tribunal’s decision be set aside and the matter remitted to the Tribunal to be heard and determined in accordance with law. In effect the Court decided that the AAT did not make its decision in accordance with the family assistance law.

Two Sentenced Over Family Day Care Payments Fraud

The Australian Federal Police have published a media release in relation to this matter.

Perth Childcare Worker Assault Charges

Further to yesterday's post, ABC News online published a report on the former childcare worker's appearance in court.

WA Child Care Worker Assault Charges

Western Australia Police issued a media release in regard to these charges dating back to 2018.

Opinion Piece on Flaws of Childcare System

 An opinion piece was recently published in the The Sydney Morning Herald.

Guidelines for Development of Service Policies & Procedures

Queensland Early Childhood Education and Care, in conjunction with ACECQA, have developed guidelines for developing policies and procedures for services. The 11 guidelines provide a logical step-by-step breakdown of what services need to consider and cover in each policy and procedure.

Investigation of Death of Child at Sydney Childcare Centre

ABC News Online has carried a report on the investigation of the unexplained death of a child at a childcare centre two years ago.

New NSW Regulatory Policies

The Early Childhood Education Directorate (the Regulatory Authority for NSW under the National Law) has published a series of policies in relation to provider and service approvals; fees and charges; waivers; conditions, and review of decisions.

It has also published resources to guide and assist services in implementing best practice in the safe transportation of children.

Protection from Harm and Hazard: Chief Executive Officer, Department of Communities and Scholi Pty Ltd

This is the third recent case adjudicated by the West Australian State Administrative Tribunal involving children getting burnt feet while outside (see previous posts of 27 August and 8 September). In this case an order was made which gave effect to the terms of settlement in relation to a matter brought before the tribunal by the WA Regulator (Department of Communities) for contravention of section 167, National Law, by the approved provider (Scholi Pty Ltd) by failing to ensure that every reasonable precaution was taken to protect children being educated and cared for by it from harm and from any hazard likely to cause injury. The facts of the case are set out in the statement of relevant facts (see Annexure A of the case). In summary, at the approved provider's North Fremantle School of Early Learning service, while in an outdoor area a two-year old child burnt their feet when walking on an unshaded brick paved and synthetic grass area. The child required medical treatment at Perth Children's Hospital.

A penalty of $9,000 was imposed on the approved provider with a further $1,000 to be paid to the Department for legal costs.

In Western Australia, uniquely, such matters as this are generally heard as disciplinary matters under the National Law (WA). See the article by David Oliver in The Sector that explains the process in detail.

The Department of Communities issued a media release on this case.

Thirteen People Charged After Alleged $500,000 Family Day Care Fraud

The Sydney Morning Herald recently carried a report on the latest charges arising from Strike Force Mercury police operations.

Sydney Childcare Service Charged After Baby Almost Strangled by Ribbon

 The Sector website has carried a report on this incident.

Toddlers Escape from Gold Coast Childcare Centre

ABC News Online and the Brisbane Times carried reports on two children allegedly leaving a childcare centre unsupervised and straying close to a main road.

Stay of Cancellation of Provider Approval: Aufai t/as Little Hearts Family Day Care Service v Queensland Department of Education

This case involves an application by the approved provider (applicant) to stay the decision of the Department of Education (the Queensland Regulatory Authority under the National Law) to cancel its approval pending a review of the decision by the Queensland Civil and Administrative Tribunal. The Department decided to cancel the provider approval due to a series of non-compliances with the National Law and Regulations (see para. 9 for list). In particular, the Department argued that "there were a significant number of emergency action notices, compliance notices and breaches over a period of approximately nine months and it was of great concern that there seemed to be repetition of many of these contraventions." (para. 10). One of the breaches was that the applicant did not have a Blue Card (Working with Children Check) for a period from the end of February to the end of August 2020. The Tribunal weighed up all the evidence and, unusually, decided not to grant the stay, stating that (at paras. 59-61, 63-64):

There is a clear public interest in maintenance of the integrity of the Family Day Care licensing system in Queensland. The licensing regime is designed with the protection of children and the protection of them from exposure to harm playing central roles. This interest in child safety is paramount and this must be considered when balancing the legitimate interests of the Applicant and the public interest. Apart from the individuals who apply to hold provider licences and service licences, the others who have an interest in these matters are the children who use the service, their families, the regulators, the other service providers within the industry and the general public who also have an interest in the integrity of the system. The principles and objects of the National Law provide that the rights and best interests of children are paramount. It is in the public interest to ensure that the health, safety and wellbeing of children in education and care services is protected. It is important also that public confidence is maintained in the maintenance of the health, safety and wellbeing of the children in such services. The public is entitled to take comfort from assurance that strict adherence to these principles by the service providers is occurring.
Cogent reasons are needed before staying an order following a decision to protect the safety of children. Merely showing an inability to continue in a professional trade until review is determined has not been held to be sufficient. In the case of Munt v Queensland Law Society Incorporated President Justice Thomas, while acknowledging the Applicant had an arguable case and prospects of success in the review proceedings, refused to grant a stay. There, the Applicant ’s argument that he would no longer be able to derive an income as a lawyer and that his clients would be disadvantaged was held to be outweighed by other factors including:
(a) the seriousness of the misconduct;
(b) the likely prejudice to public confidence in the integrity of the disciplinary process;
(c) the reputation of the profession if the practitioner is granted a stay;
(d) the means available to mitigate that prejudice; and
(e) the expedition with which the review can be heard.
I consider that the same reasoning applies to cases such as the current case. A licence allows the Applicant the right to continue to have children under control and care, even if indirectly. Granting a stay in the current circumstances, the Respondent submits, may put innocent parties such as children in the care of the Applicant’s service. The Applicant has operated for a period of time without an essential requirement, that is a Blue Card, even though it is announced they have one now. Confidence in the integrity of the Family Day Care licensing regime maybe undermined if an person who has behaved as the Applicant has is able to continue to run a service in the current circumstances. The Applicant’s interests in conducting her business and earning her income are subordinate to the need to ensure the safety of children and this safety is provided by the imposing of strict controls on 
licensing and ensuring that the National Law are met....
In assessing the balance of convenience, the Applicant has provided some evidence that their work prospects will be prejudiced by not granting the stay. On the other hand, the protection of the individual safety of children via the strict observation of National Standards and 
Laws could be prejudiced by granting a stay in these circumstances.
In my view, it is not desirable, in these circumstances, to grant a stay of the Education Department decision. In coming to that decision I have taken into account factors including the purpose of the National Law, the role of the regime, the reasons for suspending the Applicant’s licences, the Applicant ’s response, submissions made by the Applicant, the submissions made by the Respondent against granting a stay and the Applicant’s submissions in favour of a stay.