Two Charged with Manslaughter for Death of Child on Childcare Minibus

ABC Online reported on the latest developments in this tragic incident. The Guardian and News.com.au also published reports.

NSW Government Family Day Care Crackdown

ABC Online carried a report on NSW compliance action. The Federal Minister for Education also recently published a media release on Commonwealth compliance activity.

Queensland Government Response to Death of Child on Childcare Minibus

The Sector website carried a report on the response today. A letter from the government was sent to bus service operators and early childhood service providers and can be accessed here.

Stay of Cancellation of Service Approval: Oakhaul Pty Ltd v Department of Education

This is a case before the Queensland Civil and Administrative Tribunal for a stay (put on hold) of a decision by the Queensland Regulatory Authority, under the National Law (Department of Education), to cancel the service approval of a service the applicant operates at Oakey.

The Department decided to cancel service approval because of:

• Oakhaul’s failure to operate the centre in a way that ensured the safety, health and wellbeing of children constituted a breach of a statutory condition of the service approval; 
• the continued operation of the centre constituted an unacceptable risk to the safety, health and wellbeing of the children; and 
• Oakhaul had demonstrated unwillingness or inability to operate the centre in a compliant manner (para. 12).

The judgment detailed a long history of non-compliance and according to the Department there was only one other service in Queensland that had a lower rating under the assessment and rating system (see paras.5-11).

The Tribunal considered the evidence to assess whether the cancellation should be stayed until a full hearing and concluded:

Ensuring the safety, health and wellbeing of children attending education and care services is an objective of the National Law. Guiding principles in administering the National Law include that the rights and best interests of the child are paramount, and that best practice is expected in the provision of education and care services. Another guiding principle is that the role of parents and families is respected and supported.
The Department’s submissions proceed, in effect, on the basis that an unacceptable risk exists to the safety, health and wellbeing of children at Oakhaul’s centre. If that assessment is correct, then of course a stay could not be desirable.
However, I consider the position to be less clear-cut than is asserted by the Department. The Department’s submissions paint a picture of extensive and persistent non-compliances and failures to remedy, without acknowledging the extent to which that picture is based on contested evaluations by the Department about the adequacy of remedial measures or the sufficiency of verification. Further, the inspector’s notes of the 6 January 2020 inspection indicate a number of specific concerns, but the decision to issue a regulatory notice in respect only of the basketball pole is difficult to reconcile with the submission of ongoing unacceptable risk.
I do not regard Oakhaul’s comments about the lack of actual harm as indicative of indifference to the importance of minimising risk regardless of actual harm.
The most recent injury is said to have been in 2017, when a child sustained fractures when using a trampoline. That is a fairly common type of injury, though of course parents and guardians should be given the choice about whether their children are exposed to the risk.
Closure of the centre would disrupt children’s settled routines and familiarity with staff. It would inconvenience and curtail the freedom of choice of those families who have elected to keep their children at Oakhaul’s centre.
When all of the circumstances are taken into account, the public interest factors do not all point in one direction....
My preliminary assessment of the currently-available evidence and submissions leads me to the conclusions that Oakhaul appears to be committed to fixing any remaining deficiencies, and that there is no imminent or otherwise unacceptable risk to the safety of children. When all factors are considered, including the disruption to the lives of children, families, and staff, and the financial effects on Oakhaul, on balance I consider that a stay of the cancellation decision is desirable. (paras.35-41, 44)

Child Found Dead on Childcare Minibus in Cairns

ABC Online have reported this tragic event.

Victorian Legislation to Align Children's Services with National Law Requirements: Draft Regulations

As mentioned in a previous post, legislation is being introduced to align Victorian Children's Services with the National Law. Draft Regulations and a Regulatory Impact Statement have now been published on the Engage Victoria website. Those wishing to provide input on the Regulations  can complete a survey, write a submission or attend a consultation session. The public consultation period closes on 17 March. 

It is intended that the Children's Services Amendment Act 2019 and the new Children’s Services Regulations 2020 will come into effect together on 17 May 2020.

Review of Victorian No Jab No Play Legislation

The Victorian Government is conducting an evaluation of the the No Jab No Play legislation. The Centre for Evaluation and Research, Department of Health and Human Services, is conducting surveys with parents and carers who have been impacted by the No Jab No Play legislation. The survey is available on the Engage Victoria website for all parents and carers of children aged 0 to 5 impacted by the legislation. Key findings will inform the delivery of future immunisation policy and reform and will support recommendations for system improvement.

Stay of Cancellation of Provider Approval: EEB v Secretary Department of Education

This is a case before the NSW Civil and Administrative Tribunal for a review of a decision by the NSW Regulatory Authority under the National Law (Department of Education) to cancel provider approval under section 31.
The Tribunal decided to stay the cancellation but on conditions:

The ultimate determination of the correct and preferable decision must regard the best interests of the child as paramount.

The National Law facilitates the provision of a national education and care services quality framework for the delivery of education and care services to children.

On an interim basis it is assessed that the protection of children from harm can be mitigated by the imposition of terms and conditions as the price of the stay being granted. That will give effect to protecting the paramount interests of the child.

It is necessary on the evidence which can be determined on this interim application to grant a stay to secure the effectiveness of the determination of the application. The review hearing will be futile if a stay is not granted and the review is successful and in the applicant’s favour.

The matter has been allocated a final hearing date in May 2020. Directions were made to prepare the matter for hearing. At the hearing the Tribunal will be able to determine whether the allegations are established or not and what the correct and preferable decision is having regard to the contested evidence. Any favourable decision made by the Tribunal will be rendered nugatory if the stay is not in place.

It is therefore determined that the stay application should be allowed on the alternative basis proposed by the respondent and to which the applicant agreed.

Order

The order of the Tribunal is that:

(a) The Decision of the Secretary Department of Education (“the respondent”) to cancel the provider approval of EEB (“the applicant”) under the Children (Education and Care Services) National Law (NSW) made on 19 December 2019 is stayed until the resolution of the applicant’s application for external review by the Tribunal (the proceedings 2020/15386) on the following conditions:

(a) The applicant is prohibited from accepting any new enrolments in its education and care service.

(b) The applicant is prohibited from engaging or registering:

(i) any new educators; or

(ii) previously engaged or registered educators (including Marie Sarkis, Solange Loki Samba, Ouahiba Bougharga and Alaf El Ajouz).

(c) The applicant is to suspend the provision of education and care by the following educators:

(i) Olivera Ali Obaid;

(ii) Farah Javed; and

(iii) Rita Saman.

(d) The applicant is to provide proof of the suspension is arising by order 1(c) to the Secretary by 5 pm on 6 February 2020 (paras.58-64(1)).

Report on Government Services 2020 - Early Childhood Education & Care

Part B of the Report on Government Services 2020 (ROGS report) was published today. Section 3 deals with early childhood education and care. The ROGS report is an annual report produced by the Productivity Commission comparing the performance of State and Territory governments in the delivery of a wide range of services.

In relation to childcare, some interesting information is revealed in the report in relation to compliance.

Confirmed Breaches

The jurisdictions with the highest number of confirmed breaches of the NQF per 100 services (in 2018-19) were: Northern Territory (383.7, last year 187.6), Victoria (177.1, last year 153.9), and NSW (141.7, last year 144.9). These were also the top three last year. The lowest were Tasmania (28.1), South Australia (28.2) and ACT (38.5). The report indicates these figures are not comparable between jurisdictions due to differences in administrative and reporting procedures and also changes in processes since last year.

Nationally, there were 132.4 confirmed breaches per 100 services (up from last year's 125.7). The highest rates were for family day care (292.3 breaches per 100 services, down from 295.9 last year.) and centre based day care (158.8 breaches per 100 services, slightly up from 155.3 last year).

The report continues to show that the proportion of breaches resulting in action being taken by Regulatory Authorities varies wildly across jurisdictions, because what is regarded as "action" taken varies by jurisdiction and differences in recording practices. For instance, in South Australia action was taken in 4.5% of case, whereas in the ACT 100% of breaches were addressed.

Serious Incidents

The jurisdictions with the highest number of serious incidents (as defined in regulation 12 of the National Regulations) that have occurred per 100 services (in 2018-19) were: ACT (161.5, 131.8 last year); WA (116.6, 114.7 last year; and Queensland (106.9, 108.3 last year). These were the top three last year as well. The lowest were: Northern Territory (76), Victoria (85.3) and Tasmania (90.9).

Nationally, the total number of serious incidents grew by 4.7%. There were 101.7 serious incidents per 100 NQF services with a total of 16,185 serious incidents having occurred. This is up from last year when the figures were 97.9 serious incidents per 100 NQF service and 15,435 serious incidents.

Application for Cancellation of Prohibition Notice: Nilufar v Secretary, Department of Education

This is another case heard by the NSW Civil and Administrative Tribunal where an educator has sought a review of the decision by the Regulatory Authority under the National Law in NSW (Department of Education) to impose a prohibition notice under section 182.

In this case, a family day care educator was issued with a notice which in effect prohibited her from involvement in education and care services (see para. 2 of decision). The basis of the prohibition notice was that there was an unacceptable risk to children as a a search warrant (in relation to the activities of two of her sons) was executed by police at the premises which found a white toxic substance in the garage.

In reviewing the imposition of the prohibition notice, the The Tribunal was required to assess whether it was satisfied that there may be an unacceptable risk of harm posed by the educator to children if the educator were allowed to remain on the premises or provide education and care services to children (para.52). The Tribunal looked at the objectives of the National Law in determining the scope of "unacceptable risk" and concluded:

In our view, therefore, in this context a risk is unacceptable if it is not compatible with, or would detract from ensuring the safety, health and wellbeing of children attending the services provided by the applicant and promoting the rights and bests interests of children. (para.58)

The Tribunal then made the following assessment:

While the evidence concerning the criminal investigation and the dinitrophenol is limited, it is still open to the Tribunal to consider that there may be a risk (Shak-Ra-Zad v NSW Department of Education, unreported, NSW Civil and Administrative Tribunal, 2018/67404).
The presence of the white powder suggests that a person or persons who have lived at or used the premises where the education and care service was operated, have access to and use prohibited substances. One of the applicant’s sons conceded he knew about the powder. While he does not live there presently, he may return there in the future.
Its presence also poses a risk that children might come into contact with those substances. While it might not be possible for a child to gain access to the garage, there is a risk that the substance could be used in other parts of the premises which are accessible by children. We also note that the boxes on top of the container where the substance was stored contained toys which might be used by children.
The execution of the search warrant on the premises and the ongoing police investigation of the applicant’s sons, in relation to possible kidnapping, drug offences and drug importation offences, present a risk that should the sons return to Australia, any children at the premises might be exposed to contact with serious criminal activity or possible harm. Based on the available evidence, the premises is associated with the two sons as their only official residential address. The applicant said that her sons would be allowed to stay there if they return to Australia.
We consider that these risks are unacceptable in the context of the legislation. Any hardship to the applicant is not relevant in assessing the risk.
There is no evidence to suggest that the applicant knows of or is associated with any criminal activity. We did find her evidence to lack credibility in relation to her knowledge of her son’s whereabouts and we found it improbable that she would not have asked where they were or how long they would be away. Nonetheless we consider that the risk is associated with the applicant providing the services on those premises or other premises associated with her sons, rather than associated with the applicant herself. (paras.59-64).

The Tribunal therefore found that the scope of the prohibition notice was too broad:

In that regard we consider that the content of the prohibition notice was disproportionate to the risk. We do not consider that the applicant being engaged as a supervisor, educator, family day care educator, employee, contractor, volunteer or staff member of an education and care service which is not at her own premises presents an unacceptable risk. Therefore the correct and preferable decision would be to amend the decision so that it addresses the identified risk.(para.65).

Fair Work Case Against Joys Child Care

In another case involving Joys Child Care Limited, the Sydney childcare operator has been ordered to pay $54,752 to two educators who were not paid for an entire year under the guise of unpaid work experience. The Australian reported on this case and you can read the full Federal Circuit Court judgment here. 

This appears to be a follow up case case to that mentioned in a previous blog.